LAW FOR ALL : 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.

Sunday, January 31, 2021

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.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos. 3974-3975 of 2020

Special Leave Petition (Civil) Nos. 11798-11799 of 2020

High Court of Kerala …Appellant

Versus

Reshma A. & Others Etc. …Respondents

PART A

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

A. Background

B. Submissions of the parties

C. Kerala Rules, 1991

D. Malik Mazhar Sultan (3)

E. Committee of Judges: Kerala High Court

F. Harmonizing Rule 7(2) of the Kerala Rules, 1991 with Malik Mazhar Sultan (3)

G. Harmonizing Rule 7(2) of the Kerala Rules, 1991 with Articles 14 and 16 of the

Indian Constitution

H. Factual Analysis and Conclusion

A Background

1 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

1 Writ Appeal 994/2020 and 998/2020 (High Court of Kerala)

2 Writ Petition (Civil) 10007/2020 and 10361/2020 (High Court of Kerala)

PART A

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.

2 A notification was issued by the High Court4 on 1 February 2019 inviting

applications for appointment to the posts of Munsiff-Magistrate in the Kerala Judicial

Service, against regular vacancies and against a carry-forward called ‘No

Candidates Available (NCA)’. Thirty-seven “probable” vacancies were notified

including one vacancy reserved for persons with disabilities, for appointment by

direct recruitment and recruitment by transfer. Eight vacancies were notified under

the NCA category. The notification is reproduced below:

3 “Kerala Rules 1991”

4 “Appellant”

PART A

3 A preliminary examination was held on 26 March 2019 and the result was

declared on 19 July 2019. The main examination was held on 31 August 2019 and 1

September 2019 and the result was declared on 21 December 2019. Interviews

were conducted between 8 and 25 January 2020 and the merit list was published on

20 February 2020. After the competitive examination, a list of candidates qualified

for selection was prepared and was published on 20 February 2020. The merit list

prepared by the appellant was approved by the Governor and was notified by the

Government of Kerala through a gazette notification dated 07 May 2020. By way of

this notification, 32 candidates were appointed as Munsiff-Magistrate trainees by

direct recruitment for the year 2019 against regular vacancies and 5 candidates

were subsequently appointed against NCA. All the selected candidates are

undergoing training.

4 Two petitions were filed under Article 226 of the Constitution before the High

Court, Writ Petition No. 10007 of 2020 and Writ Petition No. 10361 of 2020 in May

2020, claiming that as on 07 May 2020 and thereafter, several vacancies had arisen

for the post of Munsiff-Magistrate, which were not specified in the notification inviting

applications. The respondents, who were the original petitioners, claimed that in

accordance with Rule 7(2) as amended with effect from 14 January 2019, all

vacancies which arise for a period of one year after the approval of the merit list by

the Governor, are to be filled from the approved merit list. The submission was that

appointments of Munsiff-Magistrates must not be limited to thirty-two vacancies and

must take into account all other vacancies that have arisen or which may arise till 6

PART A

May 2021, that is, within one year from the date on which the merit list dated 7 May

2020 was notified.

5 Opposing these submissions, the High Court of Kerala, the appellant herein,

contended that appointment to vacancies in the judicial service of the state is

regulated by the Kerala Rules, 1991 and by the directions and timelines fixed by this

Court under Article 142 of the Constitution in Malik Mazhar Sultan (3) v. Uttar

Pradesh Public Service Commission5 (“Malik Mazhar Sultan (3)”). Relying on

Malik Mazhar Sultan (3), the appellant argued that the notification inviting

applications is issued for only those vacancies that are available till 31 December of

the year in which the notification is issued and only these notified vacancies can be

filled up by the recruitment process of a given year.

6 During the pendency of the petitions, a fresh notification dated 30 June 2020

was issued by the appellant inviting applications to 47 probable regular posts of

Munsiff-Magistrate. A corrigendum dated 30 July 2020 was issued deleting the term

‘probable’ from the number of regular vacancies notified.

7 The Single Judge of the High Court, by a judgment and order dated 9 July

2020, held that Rule 7(2) provides that vacancies existing and arising within one

year from the date of approval of the merit list by the Governor are to be filled up

from the select list, unless a fresh list comes into force before the lapse of a year.

The Single Judge held that since a special rule governs the selection and

5 (2008) 17 SCC 703

PART A

appointment of candidates to a post, the appellant- as the High Court of Kerala on

its administrative side, could not deny appointment on the ground that the

recruitment would not fall within the timelines prescribed in Malik Mazhar Sultan

(3). Denial of appointment to the additional vacancies would, in the view of the

Single Judge, violate Articles 14 and 16 of the Constitution. The Single Judge further

held that in case the appointments in accordance with the Kerala Rules, 1991 are

not in consonance with the directions of this Court, the appellant would have to seek

permission or furnish an explanation before this Court. Rejecting the contention of

the appellant that no vacancy in excess of the thirty-seven specified in the

notification can be filled up, the Single Judge held that only a probable number of

vacancies was specified in the notification. The writ petitions were allowed and the

appellant was directed to forward an additional list of candidates from the merit list

dated 20 February 2020 to the Governor for approval and appointment to the posts

of Munsiff-Magistrate.

8 This judgment and order of the Single Judge was affirmed by the Division

Bench in appeal. The Division Bench held that amended Rule 7(2) provides that the

approved list is valid for the notified vacancies and the vacancies arising within one

year from the date of approval by the Governor or till a fresh list comes into force.

Consequently, the merit list approved on 7 May 2020 would be valid for vacancies till

6 May 2021 or till a fresh list comes into force, whichever is earlier. The Division

Bench further held that the operation of the Kerala Rules, 1991 for selection and

appointment was not in contradiction with the guidelines laid down in Malik Mazhar

PART B

Sultan (3) as this Court had noticed that selections were to be made according to

the existing judicial service rules in the States/Union Territories. According to the

Division Bench, the intent of Malik Mazhar Sultan (3) was not to interfere with

statutory rules, but only to lay down guidelines for expeditious filling up of judicial

vacancies. The Division Bench held that the term ‘probable’ vacancies in the

notification inviting applications indicated that there was a possibility of variance

between the actual and advertised vacancies and the advertised vacancies could be

reduced or enhanced. Thus, vacancies in excess of those notified could be filled up.

9 Two issue fall for determination in this appeal:

(i) Whether Rule 7 of the Kerala Rules, 1991 is contrary to the directions of

this Court in Malik Mazhar Sultan (3); and

(ii) 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.

B Submissions of the parties

10 Mr V Giri, learned senior counsel appearing on behalf of the appellant, has

made the following submissions:

i Rule 7(2) of the Kerala Rules, 1991 as amended in 2019, if interpreted

to fill up all vacancies arising within one year of its approval, would be

PART B

inconsistent with the directions of this Court in Malik Mazhar Sultan

(3);

ii The respondents cannot be appointed to vacancies arising within one

year from the date of approval of the merit list by the Governor, in

excess of the vacancies notified;

iii In Malik Mazhar Sultan (3), this Court directed that after completion of

the recruitment process, appointment letters for vacant posts are to be

issued on 1 December of every recruitment year and the last date of

joining shall be 2 January of the following year. Thus, for every

recruitment year the vacancies to be considered are as on 1 December

to enable the appointees to join on 2 January of the following year;

iv The direction contained in the order of this Court dated 4 January 2007

in Malik Mazhar Sultan (3), which provided that 10% of the posts shall

be notified for vacancies that may arise due to elevation, death or

otherwise, was superseded by this Court in a subsequent order dated

24 March 2009. In the subsequent order, this Court provided that the

High Courts shall notify the existing number of vacancies and

anticipated vacancies for the next one year. Thus, the vacancies

notified for any selection year are the vacancies existing on 15 January

of that year plus anticipated vacancies for that year and a few

vacancies which may arise due to death, resignation, promotion or

otherwise;

v Recruitment commenced for the year 2020 and included the vacancies

PART B

existing at the beginning of the year and anticipated vacancies till 31

December 2020;

vi The term ‘probable’ denotes addition or deduction to be made on

account of vacancies arising due to death, retirement, appointment of

an incumbent to a superior post, among other reasons, for which the

additional category has been provided in Malik Mazhar Sultan (3);

vii 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 which is contrary to the directions of this Court in 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];

and

viii A harmonious interpretation of the Kerala Rules, 1991 along with the

directions of this Court in Malik Mazhar Sultan (3) 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.

11 Opposing these submissions, Mr P S Patwalia, and Mr V Chitambaresh,

learned Senior Counsel and Ms Bina Madhavan, learned Counsel appearing on

behalf of the respondents contended that:

i About fifty vacancies subsist after the appointments were issued on 7

PART B

May 2020 and forty-seven vacancies are advertised in the notification

dated 30 June 2020 for appointments for the year 2020;

ii The term ‘probable’ has been consciously deleted from the notification

for 2020, by the corrigendum issued on 30 July 2020 as the term

‘probable’ implies that the number of vacancies is projected and not

definite;

iii 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 (2019 SCC Online SC 254);

iv The amendment to Rule 7(2) of the Kerala Rules, 1991 was made with

specific reference to Malik Mazhar Sultan (3) and has been discussed

in the impugned judgment;

v The amendment to Rule 7(2) 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. This amendment is a

significant departure from the previous rule which only mandated that

the list remains in force for three years or until a fresh list is prepared

and did not contemplate filling up of vacancies arising after the

approved list;

vi Appointments from a subsisting merit list can be made against

vacancies arising after the merit list is notified, as held in Virender S

PART C

Hooda v. State of Haryana6

;

vii The Kerala Rules, 1991 have not been challenged as violative of

Articles 14 and 16 of the Constitution and the High Court cannot

contend that the its own rules violate Articles 14 and 16;

viii There has been an inordinate delay of over two years in filling up the

judicial vacancies. In case the vacancies are not filled up by using the

merit list for Selection Year 2019, they will remain vacant till early 2023;

and

ix A harmonious interpretation of Rule 7(2) of the Kerala Rules, 1991 and

the dictum in Malik Mazhar Sultan (3) would indicate that all vacancies

existing on the date of appointment must be filled up.

12 We will now consider the rival submissions.

C Kerala Rules, 1991

13 The Kerala Judicial Service Rules 19917 came into force with effect from 1

January 1992. The Kerala Rules 1991 have been issued under the authority of the

Governor of Kerala in exercise of powers conferred by Articles 234 and 235 of the

Constitution and the provisions of Section 2(1) of the Kerala Public Services Act

1968. The Notification by which they were issued, SRO No. 1621/91, terms them as

6 (1999) 3 SCC 696

7 “the Kerala Rules 1991”

PART C

“Special Rules in respect of the Kerala Judicial Service”. Rule 3 specifies that the

service shall consist of two categories:

“Category (I) : Subordinate Judges I Chief Judicial Magistrates

Category (2) : Munsiff-Magistrate.”

14 The Governor of the State is the appointing authority for category (2). Rule 5

provides that appointment to the post of Munsiff Magistrate shall be made by direct

recruitment and by transfer in the manner provided in sub-Rule (3). Originally, Rule

7 in its unamended form was cast in the following terms:

"7. Preparation of lists of approved candidates and

reservation of appointments:

(1) The High Court of Kerala shall, from time to time, hold

examinations, written and oral, after notifying the probable

number of vacancies likely to be filled up and prepare a list of

candidates considered suitable for appointment to category

(2). The list shall be prepared after following such procedure

as the High Court deems fit and by following the rules relating

to reservation of appointments contained in rules 14 to 17 of

Part II of the Kerala State and Subordinate Services Rules,

1958.

(2) The list consisting of not more than double the number of

probable vacancies notified shall be forwarded for the

approval of the Governor. The list approved by the Governor

shall come into force from the date of the approval and shall

remain in force for a period of three years or until a fresh

approved list is prepared, whichever is earlier."

15 Sub-rule (1) of Rule 7 required the Appellant to hold examinations “after

notifying the probable number of vacancies likely to be filled up”. Under Sub-rule (2),

a list consisting of not more than double the number of probable vacancies notified

had to be forwarded for the approval of the Governor. The list approved by the

PART C

Governor was to remain in force for a period of three years or until a fresh approved

list is prepared, whichever is earlier.

16 On 19 January 2019, the Kerala Judicial Service (Amendment) Rules 2018

were notified in the Kerala Gazette. As a result of the amendment, the last sentence

of Rule 7(1) was substituted in the following terms

“5. The last sentence in Rule 7(1) be substituted by the

following:-

"The selection shall be on the basis of competitive

examination at two successive stages. At the first stage, a

Preliminary screening examination is to be conducted to find

out the true aspirants for the posts and to make the Main

examination more competitive. In the Preliminary

examination, the ratio of 1:10 of the notified vacancies to the

successful candidates be maintained. At the second stage,

there shall be a Main examination consisting of a written

examination and a viva voce. The main (written)examination

shall have four papers with 100 marks each at a total of 400

marks, based on the syllabus prescribed by the High Court

from time to time. The number of candidates for the viva voce

shall not ordinarily exceed three times of the notified

vacancies. The maximum mark for viva voce shall be 50. The

cut off mark in the viva voce is 40% for the general and Other

Backward Class candidates and 35% for the SC/ST

candidates. The merit list shall be prepared on the basis of

aggregate marks secured by the successful candidates in the

Main (written) examination and viva voce. For the preparation

of the merit list and select list, rules 14 to 17 of Part II of the

Kerala State and Subordinate Services Rules 1958 shall be

followed."

Similarly Rule 7 (2) was substituted by the following provision:

“6. Rule 7(2) of the existing Rules be substituted by the

following:-

"(2) The merit list prepared by the High Court shall be

forwarded for the approval of the Governor. The list approved

by the Governor shall come into force from the date of the

approval and shall be valid till the notified vacancies and the

PART D

vacancies that may arise within one year from the date of

approval of the list, are filled up or a fresh list comes into

force, whichever is earlier."

17 As we have seen above, under the unamended Rule 7(2), there was a

stipulation that a list approved by the Governor will remain in force for a period of

three years or until a fresh list is prepared (the three years stipulation had earlier

been substituted by SRO 660/2006). 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.

D Malik Mazhar Sultan (3)

18 The existence of unfilled vacancies in posts falling within the district judiciary

across the country has been considered by this Court in Malik Mazhar Sultan (3) v.

U P Public Service Commission (“Malik Mazhar Sultan (3)”)8

. In the judgment,

which was delivered on 4 January 2007, comprehensive directions were issued in

regard to the mode of determining vacancies and the manner in which the selection

would have to be conducted every year. The judgment of this Court envisages an

annual exercise for selection to posts in the judicial service of each state. While

issuing directions, the two judge Bench consisting of Chief Justice YK Sabharwal

8 (2008) 17 SCC 703

PART D

and Justice CK Thakker noted that nearly five years had elapsed since the decision

of this Court in All India Judges’ Association v. Union of India9 (“All India

Judges’ Association”). In the earlier decision, the Court had envisaged that

existing vacancies at all levels in the district judiciary should be filled, if possible, by

31 March 2003. Despite this aspiration, the backlog of judicial vacancies remained

unfilled. The problem, as the Court perceived it, was that:

“1. It was about five years back that this Court directed that

existing vacancies in the subordinate courts, at all levels,

should be filled, if possible, latest by 31-3-2003, in all the

States. This direction is contained in All India Judges Assn.

(III) v. Union of India [(2002) 4 SCC 247: 2002 SCC (L&S)

508]. It has been noticed that an independent and efficient

judicial system is one of the basic structure of our

Constitution. If sufficient number of Judges are not appointed,

justice would not be available to the people thereby

undermining the basic structure. The judicial system has been

facing the problem arising out of delay in dispensation of

justice for which one of the major causes is insufficient

number of Judges when compared to either the large number

of cases pending or in relation to the average Judgepopulation ratio going by the number of Judges available in

various other democracies in the world [Ed.: See also Beating

the Backlog: Less Talk, More Actions by Dr. A.M. Singhvi,

(2007) 2 SCC J-9]. In this light, it becomes all the more

necessary to take all possible steps to ensure that vacancies

in the courts are timely filled.”

While issuing these directions and the time schedule which must be adhered to in

making judicial appointments for filling up vacancies, the Court dealt with the

submission that its directions would impinge on the role and functions of the Public

Service Commissions which were tasked with judicial appointments in states.

Dealing with the submission, the court observed that:

9 (2002) 4 SCC 247

PART D

“5… it is necessary to note that selections are required to be

conducted by the authorities concerned as per the existing

Judicial Service Rules in the respective States/Union

Territories.”

19 This Court observed that progressively, a consensus would have to be arrived

at so that the selection process for appointments to the district judiciary would be

conducted by the High Courts or by the Public Service Commission under the

control and supervision of the High Courts. The Court issued detailed directions

specifying timelines for appointments of District Judges; Civil Judges (Senior

Division) and Civil Judges (Junior Division). For appointment to the post of Civil

Judge (Junior Division) by direct recruitment, the following time schedule was

stipulated in the judgment of this Court:

“7…

D. For appointment to the posts of Civil Judge (Junior Division) by direct recruitment

Sl.

No.

Description Date

1. Number of vacancies to be notified by the High Court. 15th January

Vacancies to be calculated including

(a) Existing vacancies.

(b) Future vacancies that may arise within one year due to retirement.

say ten per cent of the number of posts.

2. Advertisement inviting applications from eligible candidates. 1st February

3. Last date for receipt of application. 1st March

4. Publication of list of eligible applicants. 2nd April

The list may be put on the website.

5. Dispatch/Issue of admit cards to the eligible applicants. 2nd

30th April

6. Preliminary written examination 15th May

Objective questions with multiple choice which can be scrutinised by

computer.

7. Declaration of result of preliminary written examination 15th June

(a) Result may be put on the website and also published in the

newspaper.

(b) The ratio of 1:10 of the available vacancies to the successful

candidates be maintained.

PART D

8. Final written examination

Subjective/Narrative.

15th July

9. Declaration of result of final written examination 30th August

(a) Result may be put on the website and also published in the

newspaper.

(b) The ratio of 1:3 of the available vacancies to the successful

candidates be maintained.

internet which can be printed by the candidates and no separate

intimation of the date of interview need be sent.

10. Viva voce. 1st

15th October

11. Declaration of final select list and communication to the appointing

authority

1st November

(a) Result may be put on the website and also published in the

newspaper.

(b) Select list be published in order of merit and should be double the

number of vacancies notified.

12. Issue of appointment letter by the competent authority for all existing

vacant posts as on date.

1st December

13. Last date for joining. 2nd January of

the following year

”

20 All Chief Justices of the High Courts were directed to constitute committees to

oversee the process of selection and appointment of judicial officers and to set up a

special cell within the High Court to look after the process. The judgment of this

Court envisages that appointment letters would be issued by the State Governments

within a month of the receipt of the recommendations from the High Courts/State

Public Service Commissions. Paragraph 15 of the judgment contains a further

direction that:

“15….ten per cent of unforeseen vacancies would be in

respect of sanctioned posts and not vacancies occurring in a

particular year.”

PART D

21 While the Court granted liberty to the High Courts and to the Governments of

the States or, as the case may be, Union Territories to apply for a variation of the

time schedule in the event of difficulties arising due to peculiar geographical and

climatic conditions and other relevant considerations, the time schedule which was

indicated in the judgment was directed to “be adhered to and appointments made

accordingly” until it was varied.

22 In the State of Kerala, certain proceedings took place in relation to the

selection and appointment of Munsiff Magistrates from the select list which was

prepared in 2013. The notification for 2013 for selection of Munsiff Magistrates was

published after taking into account additional posts of 30 Gram Nyaylayas and 27

Special Magistrate Courts. Pursuant to the notification, 66 candidates were selected.

For selection in 2013, the appellant had notified 74 probable vacancies for general

recruitment and 7 for NCA. In calculating the 74 vacancies, the appellant took into

account the establishment of the above Gram Nyaylayas and Munsiff Magistrate’

Courts. A select list of 66 candidates was approved by the Governor and on 31

October 2014 and 1 November 2014, all the 66 candidates were appointed as

Munsiff Magistrate trainees. It so happened that after the 74 vacancies were notified,

30 Gram Nyaylayas were not established as anticipated, as a result of which a

reduction of 30 anticipated vacancies occurred in the total number of notified

vacancies. Apparently, 13 NCA slots were also required to be kept vacant.

23 The appellant moved this Court in IA 141/2015 for exempting it for conducting

the selection for 2014 and 2015 and for permission to fill up the vacancies of 2015

PART D

from the then existing 66 candidates within the 2013 selection. The IA came up

before this Court together with reports filed by various High Courts on compliance

with the Malik Mazhar Sultan (3) directions. By an order dated 27 October 2015,

the following order was passed on the IA:

“I.A. No. 141 of 2015

After hearing learned Amicus Curiae and learned counsel for

the High Court of Kerala, we are of the firm view that the

prayer in the application cannot be granted.”

Accordingly, I.A. No. 141 of 2015 is dismissed.”

24 The appellant was directed to file an “appropriate status report/affidavit before

this Court on or before 20 November 2015”. The plea of the appellant for exemption

from conducting the annual selection process, in light of the excess candidates in

the previous years, was firmly rejected.

25 The significance of these events for the controversy in the present case lies in

appreciating the submission of the appellant that the requirement of an annual

selection process and adherence to the timelines specified has been considered to

be sacrosanct by this Court. It was on this basis that the application filed by the High

Court for exempting it from carrying out a selection for 2014-15 was rejected.

26 The stand out feature which emerges from the judgment in Malik Mazhar

Sultan (3) is that the object and purpose of this Court in issuing the directions was

to ensure that unfilled vacancies which continue to be the bane of the judicial system

across the country would be filled up by adhering to fixed time-lines and by adopting

PART D

an annual process for selection to judicial posts. It was with this object that detailed

timelines were spelt out in the decision. Punctilious compliance was sought, save

and except where for exceptional reasons, an extension was granted by this Court.

Since the pronouncement of that decision, this Court has consistently monitored

compliance across the country by all the High Courts. Faced with an unfavorable

judge to population ratio, the effort of this Court has been to ensure that at least the

available posts in the district judiciary are filled up.

27 Another facet which needs to be mentioned at this stage is that in the decision

which was rendered on 4 January 2007 in Malik Mazhar Sultan (3), this Court had

directed that the number of vacancies to be notified by the High Court for the annual

selection would be calculated by including:

(i) Existing vacancies;

(ii) Future vacancies that may arise within one year due to retirement;

(iii)Future vacancies which may arise due to promotion, death or otherwise “say

10 per cent of the number of posts”.

Existing vacancies are known. Vacancies arising due to retirement are also known,

because the date of retirement is fixed by the date of birth, coupled with the age of

retirement under service rules. The third category recognizes the imponderables of

service: vacancies inevitably arise due to promotion, death or resignation and such

other factors whose precise number cannot be predicted in advance. In computing

the probable vacancies for the next year, the number of posts which may fall vacant

PART D

due to uncertain events such as death, resignation and promotion cannot be

determined with precision. Yet they have to be taken into account for the selection

year. Hence, in the original judgment, this Court contemplated that about 10 per cent

of the number of posts would cover contingencies of future vacancies arising due to

“promotion, death or otherwise”. This category was dealt with in a subsequent

decision10 which was rendered on 24 March 2009 by a three judge Bench presided

over by the learned Chief Justice KG Balakrishnan (as he was then). The precise

reason for modifying the 10 per cent stipulation was explained in the order of this

Court

“2. It has been pointed out by the counsel appearing for the

various High Courts that 10 per cent of the sanctioned posts

are notified in some States. A large number of posts are to be

notified whereas there was corresponding number of

vacancies to be filled if the candidates are selected in the

select list. There may be an expectation for such

candidates to get appointment and this creates unwanted

litigation by the candidates and it is prayed that the

existing vacancies alone be notified along with the

anticipated vacancies that may arise in the next one year

and some candidates also be included in the wait list

prepared by the High Courts/PSCs.”

(emphasis supplied)

In view of the above submission of the High Courts, this Court modified the earlier

judgment in terms of the following directions:

“3. In supersession of the order passed by this Court on

4.1.2007, this Court directs that in future the High

Courts/PSCs shall notify the existing number of

vacancies plus the anticipated vacancies for the next one

10 Malik Mazhar Sultan and anr. vs. Uttar Pradesh Public Service Commission & Ors., (2009) 17 SCC 24

PART E

year and some candidates also be included in the wait

list. To this extent earlier order is modified.”

(emphasis supplied)

28 Hence, in computing the vacancies to be notified annually by the High Court,

the three factors to be borne in mind would be

(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.

E Committee of Judges: Kerala High Court

29 In the course of its judgment in the present case, the Division Bench of the

High Court has adverted to the report of its Committee of Judges, which ultimately

led to the amendment of the Kerala Rules 1991. Prior to the amendment, Rule 7(2)

envisaged that the list which was approved by the Governor would remain in force

for a period of three years or until a fresh approved list is prepared, whichever is

earlier. Bearing in mind the directions in Malik Mazhar Sultan (3), the Committee of

Judges opined in its report that:

"20. It is further submitted that as per rule 7(2) of the Kerala

Judicial Service Rules, 1991, the list approved by the

Governor shall come into force from the date of the approval

and shall remain in force for a period of three years or until a

fresh approved list is prepared, whichever is earlier. As per

the directions in the Malik Mazhar Sultan Case, the select list

prepared for all categories of officials shall be valid till the

PART F

next select list is published. It is also held therein that

recruitment is to be conducted every year.

21. In view of the direction of the Hon’ble Supreme Court,

the existing provision regarding the validity period of the

merit list contained in rule 7 (2) is to be modified to the

effect that the merit list shall be valid till the next select

list is published".”

(emphasis supplied)

The amendment of Rule 7(2) was notified. However, while doing so Rule 7(2) was

couched in language which could mean that the existing select list will cover the

probable vacancies notified and in addition, the vacancies arising within a year of

the approval of the Governor or till the next select list is published, whichever is

earlier.

F Harmonizing Rule 7(2) of the Kerala Rules, 1991 with Malik Mazhar

Sultan (3)

30 The appellant has essentially adopted a two–pronged submission in these

proceedings. The first limb of the submissions is that Rule 7(2) has to be read

together with the directions in Malik Mazhar Sultan (3) which in its tabulated

timelines set out in the order dated 4 January 2007 provides the manner in which

vacancies are to be notified annually on 15 January. The appellant emphasises that

the direction regarding further vacancies that may arise due to promotion, death or

otherwise, 10 per cent of the posts shall be notified was expressly superseded by

the subsequent order dated 24 March 2009 by providing that in future the High

PART F

Courts could notify the existing number of vacancies plus anticipated vacancies and

some candidates would also be included in the wait-list. On this basis, the appellant

indicates that the breakup of vacancies notified on 1 February 2019 comprised of

• Existing vacancies – 6 [including one PwD]

• Anticipated vacancies till 31.12.2019 - 27

• 10% vacancies added - 4

• Total vacancies notified - 37

According to the appellant, the merit list is to contain no more than double the

number of notified vacancies. Hence, the merit list for 2019 contains 69 persons who

alone were qualified. The appellant states that the select list was prepared after

applying the rules of reservations contained in Rules 14 to 17 of Part-II of the Kerala

State and Subordinate Services Rules, 1958. The select list contained the names of

32 persons for appointment against regular vacancies, after applying the rules of

reservation. The merit list did not contain persons who belonged to particular

reservation categories for 5 vacancies, which is why the select list contained 32

persons for appointment against regular vacancies and 5 persons who were

appointed against NCA vacancies carried over from the previous year. According to

the appellant, Rule 7(2) as amended with effect from 14 January 2019 must be read

in accordance with Malik Mazhar Sultan (3) which provides for an annual selection.

This submission of the appellant is that if Rule 7(2) is interpreted to mandatorily

operationalize the approved list until the notified vacancies and the vacancies that

may arise within one year from the date of approval of the list are filled up, or a fresh

PART F

list comes into force whichever is earlier- would run contrary to the decision of this

court in Malik Mazhar Sultan (3).

31 The second limb of the submissions of the appellant is that if Rule 7(2) is read

in a literal manner, it would run afoul of Articles 14 and 16 of the Constitution.

Hence, the appellant submits that the rule should not be interpreted in a manner that

would render its validity open to serious doubt. The appellant has commenced

recruitment for selection year 2020 by a notification dated 30 June 2020. This

notification includes the vacancies existing at the beginning of 2020 plus vacancies

anticipated to arise till 31 December 2020 plus 10 per cent. What should rightly form

the subject matter of the selection year 2020 cannot, according to the submission,

be brought within the purview of selection year 2019. That is to say, vacancies which

arise beyond 31 December 2019 (the recruitment year in question) are actually in

excess of the notified vacancies for 2019. Vacancies which exist on the date of the

notification for the year 2020 (to be computed as on 15 January 2020) and

vacancies which arise till 31 December 2020 have to be notified for the selection

year 2020. Such vacancies cannot be filled up from the merit list for 2019, as they

have not- and could not, have been notified in 2019. This, in the submission of the

appellant, is the only interpretation which would subscribe to the principle of equality

in matters of public employment governed by Articles 14 and 16 of the Constitution.

The appellant has adopted the position that it is under a duty to abide by a process

which is fair, just and constitutionally compliant.

PART F

32 In the submission of the appellant, where a selection is conducted for notified

vacancies and the select list is operated beyond the notified vacancies which arise

subsequent to the selection year, the constitutionally guaranteed right of persons

who become eligible during the interregnum to be considered for appointment to the

post of Munsiff Magistrate would be infringed. The word ‘probable’ denotes an

addition or deduction to cover imponderables by way of the death of an incumbent,

resignation or the appointment of an incumbent to a superior category by

hierarchical promotion or otherwise. This category is provided for by the addition of

10 per cent, as provided in Malik Mazhar Sultan (3). The appellant submits that on

a literal construction of Rule 7(2), the addition of vacancies which arise during

selection year 2020 for the purpose of operating the select list of 2019 would involve

it in an infraction of Articles 14 and 16. Such a consequence, according to it, should

be obviated by adopting a harmonized reading of Rule 7(2) with the principles which

have been enunciated in Malik Mazhar Sultan (3).

33 Opposing the two-pronged submission of the appellant, the respondents have

submitted that

(i) Rule 7(2) does not infringe the principles which were enunciated in Malik

Mazhar Sultan (3); and

(ii) There is no infraction of Articles 14 and 16 when the statutory rules

contemplate that the select list will be operated for the vacancies which were

notified as well as vacancies which arise within one year of the date of the

PART F

approval of the select list by the Governor or until a fresh list is drawn up,

whichever is earlier.

34 While analyzing the two-pronged submission of the appellant, it must be

noted at the outset that the Kerala Rules 1991 govern appointments to the Kerala

Judicial Service. The decision in Malik Mazhar Sultan (3) recognizes that Judicial

Service Rules prevail in every State. Selections to the Judicial Service have to be

conducted by the authorities by adhering to the rules which have been framed in the

respective States. The Kerala Rules 1991 trace their authority to both- a

constitutional and statutory power. SRO No. 1621/1991 by which the Rules were

issued makes this clear in its prefatory recital:

“S.R.O. No. 1621/91: - In exercise of the powers conferred by

Articles 234 and 235 of the Constitution of India and subsection (1) of section 2 of the Kerala Public Services Act,

1968 (19 of 1968) and in supersession of all the existing rules

on the subject, the Governor of Kerala hereby makes the

following Special Rules in respect of the Kerala Judicial

Service…”

The decision in Malik Mazhar Sultan (3) notices that “selections are required to be

conducted by the authorities concerned as per the existing Judicial Service Rules in

the respective States/Union Territories. Emphasizing this, the judgment of the Court

specifically dealt with the objection that the constitution of Selection Committees by

the Chief Justices of the High Court to monitor the timely appointment of judges in

the district judiciary at all levels would amount to an inference with the independent

functioning of the Public Service Commissions. The Court held that the

PART F

apprehension was “wholly misplaced”, “in view of what we have already noted about

the appointments to be made in accordance with the respective Judicial Services

Rules in the States”11. The decision in Malik Mazhar Sultan (3) was intended to

deal with a specific problem namely, unfilled judicial vacancies in the district

judiciary. The solution that was envisaged was in terms of a regulated process

governed by specific timelines under which an annual exercise would be carried out

for filling up the posts. Article 234 of the Constitution provides that:

“234. Appointments of persons other than district judges to

the judicial service of a State shall be made by the Governor

of the State in accordance with rules made by him in that

behalf after consultation with the State Public Service

Commission and with the High Court exercising jurisdiction in

relation to such State.”

Article 23512 vests in the High Court control over district courts and courts

subordinate thereto including the posting and promotion of, and the grant of leave to,

persons belonging to the judicial service of a State. The High Court’s rules

governing the appointment of persons other than district judges to the judicial

service of a State have constitutional authority whose source originates in Article

234. The recognition in Malik Mazhar Sultan (3) of the legal position that selections

have to take place in accordance with existing Judicial Service Rules in the States,

11 (2008) 17 SCC 703, at pages 75-76, paras 5-6 12 “The control over district courts and courts subordinate thereto including the posting and promotion of, and

the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the

post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking

away from any such person any right of appeal which he may have under the law regulating the conditions of

his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of

his service prescribed under such law.”

PART F

or as the case may be, Union Territories is hence in accordance with the mandate of

Article 234.

35 In two subsequent decisions of this Court, we find a reiteration of the principle

imparting sanctity to the Rules governing the judicial service in the States. The

three judge Bench decision in Rakhi Ray v. High Court of Delhi13 (“Rakhi Ray”)

involved a situation where the High Court had issued an advertisement for filling up

20 vacancies in the cadre of District Judge of which 13 were to be drawn from the

general category, 3 from the Scheduled Castes and 4 from the Scheduled Tribes. All

the 13 vacancies in the general category were filled up according to the merit list

and the appellants who ranked below the selected candidates were not appointed.

Some of the unsuccessful candidates moved the Delhi High Court with the

submission that the vacancies which arose during the pendency of the selection

process could also have been filled up from the select list in view of the decision in

Malik Mazhar Sultan (3). This Court observed, following its earlier decisions in All

India Judges’ Association and Malik Mazhar Sultan (3) that “selection was to be

made as per the existing Rules”14 and that “appointments have to be made giving

strict adherence to the existing statutory provisions”15. Dr Justice BS Chauhan,

speaking for the three judge Bench, held that appointments have to be made in view

of the provisions of the Delhi Higher Judicial Service Rules 1970 which “provide for

advertisement of the vacancies after being determined”. Moreover, “the reservation

13 (2010) 2 SCC 637 14 At page 644, para 18 15 at page 645, para 20

PART F

policy is to be implemented, the number of vacancies to be filled up has to be

determined”, failing which it would not be possible to implement the reservation

policy at all. Consequently, the Court held that there was no question of taking into

consideration the anticipated vacancies as per the judgment in Malik Mazhar

Sultan (3). Since the anticipated vacancies have not been determined in view of the

existing statutory rules, and they could not be taken into consideration:

“21. The appointments had to be made in view of the

provisions of the Delhi Higher Judicial Service Rules, 1970.

The said Rules provide for advertisement of the vacancies

after being determined. The Rules further provide for

implementation of reservation policies in favour of Scheduled

Castes, Scheduled Tribes and Other Backward Classes. As

the reservation policy is to be implemented, the number of

vacancies to be filled up is to be determined, otherwise it

would not be possible to implement the reservation policy at

all. Thus, in view of the above, the question of taking into

consideration the anticipated vacancies, as per the judgment

in Malik Mazhar Sultan (3) case [(2008) 17 SCC 703: (2007)

2 Scale 159] , which had not been determined in view of the

existing statutory rules could not arise.

22. In view of the above, we do not find any force in the

submissions that the High Court could have filled vacancies

over and above the vacancies advertised on 19-5-2007, as

per the directions issued by this Court in Malik Mazhar Sultan

(3) case [(2008) 17 SCC 703 : (2007) 2 Scale 159] .”

36 Rakhi Ray involved a situation where candidates who were not successful in

seeking appointment to the vacancies which were advertised, attempted to gain

appointment as District Judges by the inclusion of additional vacancies, over and

above those which were notified. This court turned down the request, holding that

such a course of action was not permissible, both in terms of the judicial service

PART F

rules and the mandate of Articles 14 and 16 (the latter aspect will be explored a little

later in this judgment).

37 The next decision which needs to be referred to at this stage is Hirandra

Kumar v. High Court of Judicature at Allahabad16 (“Hirandra Kumar”). Hirandra

Kumar involved a situation under the rules governing the UP Judicial Service, where

a minimum and maximum age limit could be relaxed in the case of SC/ST

candidates. The age limit was prescribed with reference to the first day of January of

the year following the year in which the notice inviting applications is published.

Before this Court, the submission of the appellants was that based on the decision in

Malik Mazhar Sultan (3), a candidate who applies for recruitment to the Higher

Judicial Service may be granted age relaxation since the candidate has crossed the

prescribed age limit between the last date of recruitment and the current. Rejecting

this submission, the Court, speaking through one of us (Dr Justice DY

Chandrachud) held:

“16. Under Rule 12, a minimum age criterion of 35 years and

a maximum age limit of 45 years is stipulated which is

relaxable by three years for Scheduled Caste and Scheduled

Tribe candidates. The age limit is prescribed with reference to

the first day of January of the year which follows the year in

which the notice inviting applications is published.

17. The submission which was urged on behalf of the

petitioners is based on the decision of this Court in Malik

Mazhar Sultan (supra). While formulating a time schedule for

the filling up of vacancies both in the Higher Judicial Service

and at all other levels in the district judiciary, this Court was

cognizant of the fact that recruitment rules are in operation in

16 2019 SCC Online SC 254

PART F

all the States and Union Territories. Bearing this in mind, this

Court observed:

“5. Before we issue general directions and the

time schedule to be adhered to for filling

vacancies that may arise in subordinate courts

and District Courts, it is necessary to note that

selections are required to be conducted by the

authorities concerned as per the existing

Judicial Service Rules in the respective

States/Union Territories. We may, however,

note that, progressively, the authorities

concerned would consider, discuss and

eventually may arrive at a consensus that the

selection process be conducted by the High

Court itself or by the Public Service

Commission under the control and supervision

of the High Court.”

18. The directions which have been issued in Malik Mazhar

Sultan (supra) are being monitored by this Court. The

Allahabad High Court has been submitting progressive

reports which are monitored by this Court for compliance. The

purpose of the directions in Malik Mazhar Sultan (supra) was

to ensure that vacancies in the district judiciary are not left

unfilled over long periods of time, undermining the efficacy of

the judicial system. Equally, the Court was cognizant of the

fact that each High Court has its recruitment rules. It is in view

of that background that the general implementation of the

directions which have been issued is being continuously

monitored.

19. The real issue is as to whether the decision in Malik

Mazhar Sultan (supra) can be construed as leading to a

vested right in a candidate who applies for recruitment to the

HJS to assert that they may be granted an age relaxation by

virtue of the fact that between the last date of recruitment and

the current, the candidate has crossed the prescribed age

limit.

20. The directions in Malik Mazhar Sultan (supra) are

intended to address the issue of vacancies in the district

judiciary. Those directions do not override the prevailing rules

which govern selections to the HJS in the States and the

Union Territories nor do they create an enforceable right in

any candidate for selection or to assert a right to age

relaxation in violation of the rules. So long as the rules hold

the field, a candidate in order to be eligible, must fulfil the

PART G

requirements of age and other conditions which are

prescribed by the Rules.”

38 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. We are thus unable to subscribe to the wider submission of the appellant

that the directions in Malik Mazhar Sultan (3) will prevail over the provisions

contained in Rule 7(2). A better line of approach is to seek an interpretation which

will bring harmony between them.

G Harmonizing Rule 7(2) of the Kerala Rules, 1991 with Articles 14 and

16 of the Indian Constitution

39 The second limb of the submissions urged by the appellant now requires

analysis. The appellant has asserted that reading the provisions of Rule 7(2) in a

literal context would involve, as Mr V Giri, learned Senior Counsel submitted “a

frontal assault” on the provisions of Articles 14 and 16 of the Constitution. In

fairness to the learned Senior Counsel, it is necessary to record that it is not the

submission of the appellant that Rule 7(2) is invalid. The submission is that it must

be interpreted in a manner that will save the rule from a challenge that it violates the

principle of equality of opportunity in matters of public employment. Essentially, the

PART G

submission is based on the fundamental precept that where a public authority

notifies a determined number of vacancies for recruitment, appointments to posts

covered by the notification cannot be in excess of the vacancies that are notified.

The submission is that if the select list of 2019 is operated by filling up vacancies

which arise for 2020, this will seriously erode the rights of candidates who become

eligible in 2020, since this will result in a corresponding reduction of vacancies for

the later year.

40 In order to analyze the issue, it becomes necessary to advert to the line of

precedent through which the constitutional principle has emerged. In Prem Singh v.

Haryana State Electricity Board17, based on the advertisement dated 2 November

1991, the Board decided to fill up 62 vacant posts of Junior Engineer by direct

recruitment, 15 posts were reserved for SC and ST candidates, 6 for Backward

Classes and 9 for ex-servicemen. The Selection Committee selected 212 candidates

and recommended the names. The Board, considering the latest vacancy position

as on 11 February 1993, decided to fill up 147 posts. Two questions fell for

determination by this Court:

(i) Whether it was open to the Board to prepare the list of 212 candidates and to

appoint 137 out of that list when the number of posts advertised was only 62;

and

(ii) Whether the appellant was justified in quashing the selection of all 212

candidates and appointments of 137 persons.

17 (1996) 4 SCC 319

PART G

After adverting to the precedent on the subject18, Justice GT Nanavati speaking for

Bench of two judges held:

“25…the selection process by way of requisition and

advertisement can be started for clear vacancies and

also for anticipated vacancies but not for future

vacancies. If the requisition and advertisement are for a

certain number of posts only the State cannot make more

appointments than the number of posts advertised, even

though it might have prepared a select list of more

candidates. The State can deviate from the advertisement

and make appointments on posts falling vacant

thereafter in exceptional circumstances only or in an

emergent situation and that too by taking a policy

decision in that behalf. Even when filling up of more posts

than advertised is challenged the court may not, while

exercising its extraordinary jurisdiction, invalidate the excess

appointments and may mould the relief in such a manner as

to strike a just balance between the interest of the State and

the interest of persons seeking public employment. What

relief should be granted in such cases would depend upon

the facts and circumstances of each case.”

(emphasis supplied)

The Court held that since the selection process was initiated for 62 clear vacancies

and, at that time anticipated vacancies were not taken into account, the Board was

not justified in making more than 62 appointments. But the Board could have taken

into account not only the actual vacancies but also vacancies which were likely to

arise because of “retirement etc” by the time the selection process was completed.

This Court held that it would not be equitable to invalidate all the appointments made

18Subhash Chander Sharma v. State of Haryana: (1984) 1 SLR 165 (P&H); Ashok Kumar Yadav v. State of Haryana: (1985)

5 SCC 417 : 1986 SCC (L&S) 88: 1985 Supp (1) SCR 657; A V Bhogeshwarudu v. A.P. Public Service Commission: JT

(1989) 4 SC 130: (1990) 1 LLN 6: (1989) 59 FLR 749 (SC); Hoshiar Singh v. State of Haryana: 1993 Supp (4) SCC 377:1994

SCC (L&S) 249: (1994) 26 ATC 325; State of Bihar v. Secretariat Asstt. Successful Examinees’ Union 1986: (1994) 1 SCC

126: 1994 SCC (L&S) 274; Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat: 1994 Supp (2) SCC 591: 1994

SCC (L&S) 1159

PART G

on posts in excess of 62. However, appointments which were made against future

vacancies – in this case on newly created posts, would have to be held to be invalid.

While moulding the relief, this Court observed that 13 posts had become vacant

because of retirement and 12 posts because of deaths. The vacancies which were

likely to arise as a result of retirement could have been reasonably anticipated and

the Board had due to oversight not taken them into consideration while a requisition

was made for filling up 62 posts. As regards the posts which fell vacant due to

deaths, this Court taking what it described as a “lenient view” did not quash the

appointments made against them. Hence, appointments made by the Board on

posts beyond 87 (the original 62 posts for which selection was advertised and the 25

additional posts which fell vacant during selection process due to deaths and

retirement) were invalidated.

41 The decision in Rakhi Ray which is by a Bench of three learned judges has

been adverted to in a different context earlier. In that case, as we have noticed, the

High Court had notified an advertisement to fill up 20 vacancies in the cadre of

District Judge. All the 13 vacancies in the general category were filled up according

to the merit list. Unsuccessful candidates belonging to the general category

however asserted that additional vacancies which came up during the pendency of

the selection process should also be filled up from the same select list. In this

context, while analyzing the constitutional requirements of Article 14 and Article 16,

Dr Justice BS Chauhan, speaking for the three judge Bench, observed:

PART G

“7. It is a settled legal proposition that vacancies cannot

be filled up over and above the number of vacancies

advertised as “the recruitment of the candidates in

excess of the notified vacancies is a denial and

deprivation of the constitutional right under Article 14

read with Article 16(1) of the Constitution”, of those

persons who acquired eligibility for the post in question

in accordance with the statutory rules subsequent to the

date of notification of vacancies. Filling up the vacancies

over the notified vacancies is neither permissible nor

desirable, for the reason, that it amounts to “improper

exercise of power and only in a rare and exceptional

circumstance and in emergent situation, such a rule can

be deviated from and such a deviation is permissible

only after adopting policy decision based on some

rationale”, otherwise the exercise would be arbitrary.

Filling up of vacancies over the notified vacancies

amounts to filling up of future vacancies and thus, is not

permissible in law. (Vide Union of India v. Ishwar Singh

Khatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992)

21 ATC 851] , Gujarat State Dy. Executive Engineers'

Assn. v. State of Gujarat [1994 Supp (2) SCC 591 : 1994

SCC (L&S) 1159 : (1994) 28 ATC 78] , State of

Bihar v. Secretariat Asstt. Successful Examinees Union

1986 [(1994) 1 SCC 126 : 1994 SCC (L&S) 274 : (1994) 26

ATC 500 : AIR 1994 SC 736] , Prem Singh v. Haryana

SEB [(1996) 4 SCC 319 : 1996 SCC (L&S) 934] and Ashok

Kumar v. Banking Service Recruitment Board [(1996) 1 SCC

283 : 1996 SCC (L&S) 298 : (1996) 32 ATC 235 : AIR 1996

SC 976] .)”

(emphasis supplied)

In the view of the Court:

“12. In view of above, the law can be summarised to the

effect that any appointment made beyond the number of

vacancies advertised is without jurisdiction, being

violative of Articles 14 and 16(1) of the Constitution of

India, thus, a nullity, inexecutable and unenforceable in

law. In case the vacancies notified stand filled up, the

process of selection comes to an end. Waiting list, etc.

cannot be used as a reservoir, to fill up the vacancy

which comes into existence after the issuance of

notification/advertisement. The unexhausted select

PART G

list/waiting list becomes meaningless and cannot be pressed

in service any more.”

(emphasis supplied)

In Bedanga Talukdar v. Saifudaullah Khan19, another two judge Bench of this

Court consisting of Justice Altamas Kabir and Justice SS Nijjar held:

“29…In our opinion, it is too well settled to need any further

reiteration that all appointments to public office have to be

made in conformity with Article 14 of the Constitution of India.

In other words, there must be no arbitrariness resulting from

any undue favour being shown to any candidate. Therefore,

the selection process has to be conducted strictly in

accordance with the stipulated selection procedure.

Consequently, when a particular schedule is mentioned in an

advertisement, the same has to be scrupulously maintained.

There cannot be any relaxation in the terms and conditions of

the advertisement unless such a power is specifically

reserved. Such a power could be reserved in the relevant

statutory rules. Even if power of relaxation is provided in the

rules, it must still be mentioned in the advertisement. In the

absence of such power in the rules, it could still be provided

in the advertisement. However, the power of relaxation, if

exercised, has to be given due publicity. This would be

necessary to ensure that those candidates who become

eligible due to the relaxation, are afforded an equal

opportunity to apply and compete. Relaxation of any condition

in advertisement without due publication would be contrary to

the mandate of equality contained in Articles 14 and 16 of the

Constitution of India.”

42 The decision in Prem Singh has been followed by a Bench of two learned

judges in Anurag Kumar Singh v. State of Uttarakhand20. In that case, the Public

Service Commission advertised 38 posts of Assistant Prosecuting Officers for a year

19 (2011) 12 SCC 85 20 (2016) 9 SCC 426

PART G

of recruitment comprising of 12 months commencing from first day of July of the

calendar year. The Public Service Commission however, held a selection for 74

posts, 37 additional posts having been created subsequently. The High Court set

aside the action, holding that the selection pursuant to an advertisement can only be

for clear vacancies and anticipated vacancies, but not for future vacancies. Justice

L Nageswara Rao, speaking for the Bench of two learned judges of this Court,

observed that the rules referred only to the recruitment year. The Bench observed

that “only the number of vacancies that are advertised can be filled up” and if the

advertisement gives liberty to the Government to vary the number of posts this

power could not be exercised for filling up future vacancies. The Court held that

during the pendency of the proceedings a large number of persons would have

become eligible for selection to the posts which were advertised and their right to be

considered for appointment was guaranteed by Articles 14 and 16 of the

Constitution. In the view of the Court, there would be an infraction of such a right if

the additional posts are not filled up by a fresh selection. Hence the Court held that

the selection pursuant to the advertisement should be confined only to the posts that

were advertised and the additional posts which were created after the expiry of the

recruitment year would have to be filled up by the issuance of an advertisement

afresh.

PART G

43 A more recent decision in Rahul Dutta v. State of Bihar21 related to the post

of Civil Judge (Junior Division). Rule 5(A)-(3) of the Bihar Civil Service (Judicial

Branch) (Recruitment) Rules 1955 stipulated that:

“(3) Eligible candidates for the written examination shall be

selected on the basis of the result of the Preliminary Test, to

the extent of 10% of the total number of appeared candidates,

rounded off to the nearest hundred; and all candidates

obtaining equal marks as the last candidate's shall also

qualify for the written examination;”

The Rule provided that only 10 per cent of the total number of candidates who

appeared at the preliminary test were to be called for the written examination

rounded off to the nearest hundred. The Court held that this stipulation in Rule 5A

was contrary to the decision in Malik Mazhar Sultan (3). Moreover, the

determination of 10 per cent of the total number of candidates who had appeared in

the preliminary examination for being called for the final written examination was

arbitrary and unreasonable, particularly, in view of the ratio of 1:10 prescribed in

Malik Mazhar Sultan (3). The restriction of candidates to 10 per cent of those who

had appeared at the preliminary test was held to curtail the competitive field

unreasonably.

44 Having considered each of these judgments, we must notice that all of them

involve factual situations which may not be identical with the facts of the present

case. Precedent does not always rest on all fours. We have noticed earlier that, in

21 (2019) 5 SCC 158

PART G

the present case, the High Court while issuing its advertisement for recruitment

specified 37 as a ‘probable’ number of vacancies. The meaning which must be

attributed to the expression ‘probable’ will be considered shortly hereafter. At this

stage we must recapitulate some of the salient aspects of the decisions which we

have cited above. In Prem Singh the advertisement which was issued by the

Haryana State Electricity Board was for filling up 62 vacant posts of Junior

Engineers while as many as 138 candidates came to be appointed. In this backdrop

this Court held that it was not open to the Board to travel beyond clear and

anticipated vacancies. In other words, while clear and anticipated vacancies could

be taken into consideration while issuing an advertisement for commencing the

selection process, future vacancies could not be considered. While moulding the

relief, this Court maintained the selection for the 62 vacancies which were

advertised and 25 additional vacancies which arose during the selection process

due to promotions and deaths, but not beyond that. The decision in Rakhi Ray

involved a situation whether the High Court had advertised 20 vacancies of District

Judges of which 13 were in the general category all of which were filled up. This

Court rejected the contention of those among the general category candidates

whose position in the merit list was below the 13 selected candidates that they were

entitled to selection on the basis of the vacancies which occurred during the

pendency of the selection process, based on Malik Mazhar Sultan (3). This Court

held that vacancies over and above those which were notified could not be filled up,

save and except in a rare and exceptional situation. Absent an exceptional situation

an exercise to fill up vacancies over and above those which were notified would be

PART G

arbitrary. The decision in Anurag Kumar Singh involved a requisition by the State

of Uttarakhand to the Public Service Commission for selection of 38 Assistant

Prosecuting Officers. Despite the advertisement which was for filling up 38 posts, an

additional 37 posts were sought to be filled up which had been created

subsequently. This was held to be impermissible, as violating the guarantees of

Articles 14 and 16. The decision in Rahul Dutta of two judges has held that

restricting the field of a written examination to 10 per cent of the candidates who

appeared at the preliminary examination is violative of the dictum in Malik Mazhar

Sultan (3) besides being arbitrary on the ground that it unreasonably restricts the

field of competition.

45 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. The process of selection must comport with the

principles of reasonableness. Where the authority which makes a selection

advertises a specific number of posts, the process of selection cannot ordinarily

exceed the number of posts which have been advertised. While notifying a process

for appointment, the authority may take into consideration the actual and anticipated

vacancies but not future vacancies. Anticipated vacancies are the vacancies which

can be reasonably contemplated to arise due to the normal exigencies of service

such as promotion, resignation or death. Hence, in notifying a given number of posts

for appointment, the public authority may legitimately take into account the number

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of vacancies which exist on the date of the notification and vacancies which can

reasonably be accepted to arise in the exigencies of the service. While the exact

number of posts which may fall vacant due to circumstances such as promotion,

resignation or death may be difficult to precisely determine the authority may make a

reasonable assessment of the expected number of vacancies on these grounds.

However, future vacancies conceptually fall in a distinct class or category. Future

vacancies which arise during a subsequent recruitment year cannot be treated as

anticipated vacancies of a previous selection year. Vacancies which would arise

outside the fold of the recruitment year would not fall within the ambit of anticipated

vacancies. For it is only the vacancies, actual and anticipated which would fall within

the course of the selection or recruitment year that can be notified when the

selection process is initiated. These are constitutional principles to which statutory

edicts are subordinate.

H Factual Analysis and Conclusion

46 In the present case, the essential aspect on which we need to dwell is the

meaning of the expression “probable”, in the context of Rule 7(1). The essence of

the present case will depend upon the manner in which the statutory rules are

interpreted. That indeed is the central task in deciding the appeal. Intrinsic to the

process of interpreting the rules is the meaning which is to be ascribed to the

expression “the probable number of vacancies”. Rule 7(1) requires the appellant to

first notify “the probable number of vacancies” likely to be filled up and thereafter, to

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hold examinations both written and oral. The selection process results in the

preparation of a list of candidates considered suitable for appointment as MunsiffMagistrates. Sub-rule (2) of Rule 7 stipulates that a list of not more than double the

number of “probable vacancies notified” has to be forwarded for the approval of the

Governor. As it stood after its amendment in 2006, the second sentence of Sub-rule

(2) provided a term of validity for the list which is approved by the Governor. This

was to be three years or until a fresh approved list is prepared, whichever takes

place earlier. By the amendment to the Rules on 19 January 2019, the last

sentence of sub-Rule (1) has been substituted and sub- Rule (2) has been

substituted in its entirety. Sub-Rule (1) prior to its amendment did not specify the

modalities for holding the competitive examinations. Following the amendment, Rule

7(1) stipulates that the selection is a two-stage process, on the basis of a

competitive examination. The first stage consists of a preliminary screening

examination. In the preliminary examination, a ratio of 1:10 of the “notified vacancies

to the successful candidates is to be maintained”. The object is to ensure a broad

and competitive field of candidates who will be called for the second stage of the

main examination. The main examination consists of a written examination and viva

voce; the former consisting of four papers each with 100 marks based on a

prescribed syllabus. The number of candidates for the viva voce is not to ordinarily

exceed three times “the notified vacancies”. A cut off in the viva voce is provided for

general candidates and OBC candidates (40%) and SC/ST candidates (35%). A

merit list is then prepared on the basis of aggregate marks secured by candidates in

the main written examination and the viva voce. In preparing the merit list and select

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list, Rules 14 to 17 of Part II of Kerala Subordinate Service Rules 1958 have to be

observed.

47 After its amendment in 2019, Rule 7(1) as it stands speaks in the first

instance of the notification of “the probable number of vacancies likely to be filled

up”. Rule 7(1) also refers to “notified vacancies” in two places, the first in the

context of maintaining the ratio between the vacancies which are notified and

successful candidates while the second refers to the proportion between the notified

vacancies and the number of candidates called for the viva voce. Now sub-Rule (2)

of Rule 7 which has been substituted in its entirety as a result of the amendment

provides the tenure over which the merit list which has been approved by the

Governor would be valid. As we have seen, before its amendment, sub-Rule (2) of

Rule 7 provided for a tenure for the list approved by the Governor for a period of

three years or until a fresh approved list is prepared whichever is earlier. This tenure

is now modified by the amendment brought about by the substitution of Rule 7(2).

The modified tenure for the list approved by the Governor indicates that the list will

be valid “till the notified vacancies and vacancies that may arise within one year from

the date of approval of the list” are filled up or a fresh list comes into force,

whichever is earlier. Thus, we find that the expression ‘notified vacancies’ which

has been used at two places in sub-Rule (1) of Rule 7 finds a presence also in

substituted Rule 7(2). Now what is material to note is that it is Rule 7(1) which

provides for the initial notification by which a probable number of vacancies is

notified. The ‘notified vacancies’ also determine the ratio of 1:10 in the preliminary

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examination and the number of candidates called for the interview. Sub-Rule (2) of

Rule 7 does not have any bearing on the notification of the vacancies under Subrule (1) but it provides for the period of time over which the list approved by the

Governor is to remain valid.

48 The Kerala Rules 1991 preceded the judgment in Malik Mazhar Sultan (3).

The amendment which came into force on 19 January 2019 is evidently after the

decision of this Court. The effort, as a matter of statutory interpretation, must be to

harmonize the directions which were issued by this Court in Malik Mazhar Sultan

(3) which are relatable to the jurisdiction of this Court under Article 142 of the

Constitution and the statutory rules. Undoubtedly, this Court has noticed in that

decision that there were rules in force in the States and the Union Territories

governing the selection to their judicial service. While issuing directions in regard to

the maintenance of timelines and for the modalities to be followed in an annual

selection, this Court clarified that this would not impinge upon the independence of

the Public Service Commission or the role of the High Courts in the States. In the

subsequent decisions in Rakhi Ray and Hirandra Kumar, this Court has specifically

negatived the attempts made by candidates that did not qualify in terms of the rules

governing selection to the judicial service to seek appointment merely on the basis

of the observations in Malik Mazhar Sultan (3). Rakhi Ray involved a situation

where candidates who did not qualify for the notified vacancies of District Judge in

Delhi claimed appointment on the basis of the vacancies which had arisen during

the process of selection. Their plea was turned down on the ground that once

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vacancies have been notified, no candidate could seek appointment beyond the

extent of the vacancies which were advertised. Hirandra Kumar was a decision of

this Court where candidates for the higher judicial service examination claimed an

exemption from the age limit set out in the State Judicial Service Rules on the

ground that after the date of the last examination for recruitment, they had become

age barred. This effort was again negatived by the decision of this Court which held

candidates down to the requirement of complying with the rules and selection

process of the State Judicial Service. These two decisions would indicate that a

candidate who does not qualify in terms of the judicial service rules prevailing in the

State (or Union Territory) cannot seek a mandamus which is founded on a breach of

the rules. The observation in Rakhi Ray and Hirandra Kumar that the decision in

Malik Mazhar Sultan (3) did not override the State Judicial Service Rules must

therefore be construed in an appropriate sense. The object and purpose of this

Court in the decision in Malik Mazhar Sultan (3) was to ensure the expeditious

filling up of judicial vacancies in the State Judicial Services. It was in this

perspective, that the Court set down strict timelines for compliance. At the same

time, it is evident that the decision did not provide for other essential aspects such

as eligibility, modalities for conducting the examination and the application of

reservations in making appointments to state judicial services. Hence, a significant

field in regard to the process of selection and appointments to the judicial services is

not covered by the decision in Malik Mazhar Sultan (3) for which one has to fall

back upon construing the rules governing the state judicial service in question. But a

stand out feature which emerges from the decision in Malik Mazhar Sultan (3) must

PART H

equally be emphasized. The judgment of this Court enunciates, in no uncertain

terms, that the process of selection to the state judicial services has to take place on

an annual basis. As the orders passed by this Court on the IAs by the appellant

indicate, the requirement of yearly selection does not ordinarily brook exception. The

court however reserved to itself the power to exempt in a given situation a State or

Union Territory from compliance with the time schedule or extend time where

peculiar local conditions require the grant of such an exemption or extension. The

significant aspect of the decision in Malik Mazhar Sultan (3) is that the recruitment

process is initiated each year with a notification of vacancies by the appellant and

culminates in the appointment of candidates and their joining service. Once the

process of selection is annual, the notification of probable or anticipated vacancies

has to be for the selection year. The expression ‘probable’ means what is

anticipated, expected and likely. The expression thus comprehends the existing

vacancies and those which are anticipated due to retirement, promotion, death or

resignation and to which some vacancies can be added to incorporate imponderable

events during the recruitment process. In construing the rules by the State Judicial

Service, more particularly the process of notifying the probable vacancies, an effort

must be made to harmonize the rules with the object, intent and purpose underlying

the directions that were issued under Article 142 in Malik Mazhar Sultan (3). This

exercise becomes necessary for another reason. In the present case, Rule 7(1)

refers to “notifying the probable number of vacancies likely to be filled up”. However,

Rule 7(1) does not expressly indicate what is meant by this expression. The ambit of

that phrase should receive content and meaning based on what was envisioned in

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Malik Mazhar Sultan (3). The decision of this Court indicates that by 15 January

every year the number of vacancies is to be notified by the appellant. The manner in

which the vacancies are to be calculated is also stipulated. In making appointments

to the post of Civil Judge (Junior Division) by direct recruitment the vacancies are to

be calculated by including

(a) Existing vacancies;

(b) Future vacancies that may arise within one year due to retirement; and

Originally, in the judgment of this Court dated 4 January 2007, the third category [(c)

above] was to consist of “say 10 per cent of the number of posts”. Subsequently, by

the order dated 24 March 2009, the stipulation was varied as a consequence of

which, it has been envisioned that in future the High Courts/Public Service

Commissions “shall notify the existing number of vacancies plus the anticipated

vacancies for the next one year and some candidates also to be included in the waitlist”. The existing number of vacancies is an objective fact which is known to the

particular High Court. Anticipated vacancies are those which arise as a part of the

normal exigencies of service in the ensuing year due to factors such as promotion,

death or resignation from service. These exigencies are normal to a service but

these vacancies are difficult to predict with precision. In the original order dated 4

January 2007 in Malik Mazhar Sultan (3) category (b) consisting of “future

vacancies that may arise within one year” was qualified by the expression “due to

retirement”. Retirements are known as an objective factor since the date on which a

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candidate appointed to judicial service would attain the age of superannuation is

known in advance. Category (c) consisting of future vacancies referred to those

which may arise due to promotion, death or otherwise, the exact number being

somewhat in the realm of an imponderable future event. As a result of the

modification which has been brought about by the order of this Court dated 24

March 2009, the first category of existing vacancies is maintained as it is. The

second category consists of anticipated vacancies “for the next one year”. This

category would incorporate vacancies which were likely to arise on account of

retirement as well as those which may be anticipated in the ordinary course due to

the exigencies of service such as promotion, resignation or death of candidates

within the service. Significantly, the last category incorporates the principle that

“some candidates also be included in the wait-list”. The inclusion of some

candidates in the wait-list is to ensure the availability of candidates in the event that

additional vacancies occur during the course of the year due to the exigencies of

service. But significantly, the entire process which is contemplated by the decision in

Malik Mazhar Sultan (3) is an annual process. Hence, the vacancies which are to

be notified in the advertisement which is issued by the High Court are relatable to

the recruitment year for which a selection is carried out. Malik Mazhar Sultan (3)

does not incorporate future vacancies, that is those which lie beyond the recruitment

year for which the selection is to be made.

49 Now while giving meaning and content to the provisions of Rule 7(1) of the

Kerala Rules 1991 as amended, it would be appropriate to harmonize the ambit of

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the expression “notifying the probable number of vacancies” on the basis of the

Article 142 directions in Malik Mazhar Sultan (3). This would not do violence to the

provisions of Rule 7(1), since Sub-rule 1 does not define what is meant by probable

vacancies. Moreover, as we have already explained, Rule 7(2) deals with tenure of

the approved list while the determination of the probable number of vacancies falls

within the ambit of Rule 7(1). Hence, in determining the probable number of

vacancies likely to be filled up, the particular High Court has to take into account:

(i) The existing number of vacancies;

(ii) Anticipated vacancies during the year arising due to retirements and other

exigencies of service including promotion, death and resignation; and

(iii) Some candidates are to be included in the wait-list.

The ambit of the probable number of vacancies in Rule 7(1) must be based on this

assessment. In fact, as noted earlier, this was exactly what was done by the

appellant.

50 The submission which has been urged on behalf of the respondents, which

found acceptance by the High Court was that since the tenure of the approved list is

for a period of one year from the date of the approval of the Governor or the

publication of a fresh list, whichever takes place earlier, the vacancies which have

arisen between 7 May 2020 (the date of the approval of the Governor) and 6 May

2021 (the expiry of one year from the date of approval) must also be added in to

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form a part of the selection for 2019. There are significant problems in accepting this

line of interpretation which has found acceptance by the High Court.

51 Firstly, this line of interpretation requires the appointing authority to take into

account vacancies which have arisen in the subsequent recruitment year 2020 in

making appointments in pursuance of the selection for recruitment year 2019. This,

as a matter of first principle, is impermissible. The determination of probable

vacancies in terms of Rule 7(1) is a determination which is based on the vacancies

which are projected during the course of that recruitment year, in this case 2019.

This exercise cannot cover, consistent with the mandate of Art 14 and Art 16, future

vacancies of a subsequent year of selection. Nor does Rule 7(1) bring vacancies of

a future year within the computation of probable vacancies.

52 Secondly, adopting the interpretation which has been suggested on behalf of

the respondents would lead to serious anomalies. As we have seen, a notification

was issued by the appellant in the month of June 2020 for the 2020 recruitment.

The consequence of accepting the arguments of the respondents would be that

posts which have to be allocated for recruitment against the existing and anticipated

vacancies for 2020 would have to be reduced by allocating them to recruitment year

2019. The appellant has expressly determined and notified the vacancies which

have arisen for 2020. The respondents argued that though the original notification

referred to a probable number of vacancies the corrigendum deleted the expression

‘probable’. This, in our view, is not a matter of moment since the essence of the

controversy lies in interpreting the provisions of the Rules as they stand. If the

PART H

respondents were right in their submission, this would require the appellant to

progressively remove from the ambit of the vacancies which are notified for the

subsequent recruitment year, the vacancies which are allocated to the previous year

on the basis of a supposed interpretation of Rule 7(2). This would clearly be

impermissible and bring uncertainty to the recruitment for subsequent years. It will

cause serious prejudice to candidates who qualify in terms of eligibility during the

recruitment process of 2020 by reducing the number of probable vacancies and

adding them to the previous recruitment cycle.

53 The third anomaly which arises from the interpretation, which has been

suggested by the respondents and which has been accepted by the High Court, was

noticed by the High Court itself in the course of its judgment. If Rule 7(2) were to be

given overriding importance without reading it in juxtaposition with the determination

of the probable number of vacancies under Rule 7(1), the issue is until what period

of time would vacancies arising after the date of approval by the Governor have to

be factored into account. Some of the petitioners before the High Court, as indeed

some of them in the written submissions before this Court, indicated that the number

of vacancies as existing on the date of the approval of the Governor should form the

basis of making appointments. The High Court rejected these arguments in the

following observations:

“9. Immediately we have to notice that we cannot go mid-way

to direct appointment to vacancies arising till the date of

approval. We either decline the relief or grant it as permissible

under the rules. The date of approval is only relevant to

determine the validity period of the list, as per the rules. We

cannot give the date of approval any significance other than

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that prescribed in the rules. Which if allowed would literally be

a half baked cake, neither good for consumption nor

completely worthless to be thrown out. We would not rest

ourselves on such sticky premise of uncertainty.”

The High Court was correct in comprehending that it could not accept a half-way

measure merely because it suited the interest of some of the candidates who would

be appointed if the vacancies which had arisen up to the date of approval were

taken into account. Noticing this anomaly, the High Court by its impugned judgment

went the entire extent by issuing the following directions:

“38… We direct the appellant to prepare a select list from the

approved merit list including those vacancies which arise as

on today and those anticipated till 06.05.2021 or any other

date on which the appellant expects the next list to be

published.”

In its conclusion, the High Court also observed:

“We dismiss the Writ Appeals, directing the High Court to

forward a select list in accordance with the rules 14 to 17 of

Part II of the KS&SSR, 1958 from the approved merit list.”

The plain consequence of the decision of the High Court would be that vacancies

which have arisen during 2020 would be allocated to 2019. This could only be done

if the vacancies for 2020 were anticipated to arise during 2019, which is not the

case.

54 The fourth difficulty in accepting the line of approach of the High Court rests

on constitutional principles. Undoubtedly, the validity of Rule 7(2) was not in

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question before the High Court. Counsel for the respondents argued that it does not

lie in the province of the appellant to raise a doubt about the validity of its own rules,

more particularly Rule 7(2). It is necessary to note that Mr V Giri, learned Senior

Counsel appearing on behalf of the appellant did not suggest or argue that Rule 7(2)

should be held to be invalid. The submission of learned Senior Counsel is that the

expression “probable” denotes an addition/deduction which has to be made due to

the imponderables of service such as death, resignation and promotion. The

submission of the appellant is that a literal interpretation of Rule 7(2), without

reference to the constitutional requirement of not operating a select list beyond the

notified vacancies, would render the Rule violative of Articles 14 and 16 and such an

interpretation should be avoided. In other words, his submission was that a

constitutional interdict cannot be overcome in the manner it has been suggested by

the respondents and a harmonious interpretation of the judicial service rules in the

light of the directions in Malik Mazhar Sultan (3) should have been resorted to by

the High Court. We are in agreement with this line of submissions, based as it is on

the precedent of this Court. It is a settled principle of service jurisprudence that when

vacancies are notified for conducting a selection for appointments to public posts,

the number of appointments cannot exceed the vacancies which are notified. The

answer to this submission, which has been proffered by the respondents is that

under Rule 7(1) a probable number of vacancies is required to be notified and since

an exact number is not notified, there is no constitutional bar in exceeding the 37

probable vacancies that were notified in 2019. The difficulty in accepting the

submission is simply this: it attributes to the expression “probable number of

PART H

vacancies” a meaning which is inconsistent with basic principles of service

jurisprudence, the requirement of observing the mandate of equality of opportunity in

public employment under Articles 14 and 16 and is contrary to the ordinary meaning

of the expression. Black’s Law Dictionary22 defines the expression ‘probable’ as:

“Probable’: likely to exist, be true, or happen”

‘Probable number of vacancies’, as we have seen, is based on computing the

existing vacancies and the vacancies anticipated to occur during the year. It also

accounts for the possibility of inclusion of some of the candidates that are in the

wait-list. However, the expression ‘probable’ cannot be interpreted as a vague

assessment of vacancies that isn’t founded in reason and can be altered without a

statutorily prescribed cause. To allow the concept of probable number of vacancies

in Rule 7(1) to trench upon future vacancies which will arise in a succeeding year

would lead to a serious constitutional infraction. Candidates who become eligible for

applying for recruitment during a succeeding year of recruitment would have a real

constitutional grievance that vacancies which have arisen during a subsequent year

during which they have become eligible have been allocated to an earlier

recruitment year. If the directions of the High Court are followed, this would seriously

affect the fairness of the process which has been followed by glossing over the fact

that vacancies which have arisen during 2020 will be allocated for candidates in the

select list for the year 2019. Such a course of action would constitute a serious

22 11th Edition (Thomson Reuters West, 2019).

The definition of ‘Probable’ in the 4th edition, Revision 6 (1971) of the Black’s Law Dictionary was: “Having the

appearance of truth; having the character of probability; appearing to be founded in reason or experience…;

having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves

some room for doubt; Apparently true yet possibly false.”

PART H

infraction of Articles 14 and 16 and must be avoided. To reiterate, the submission of

the appellant which we are inclined to accept is not that Rule 7(2) is invalid but that a

harmonious interpretation of Rules 7(1) and (2) must be adopted that is consistent

with the Article 142 directions in Malik Mazhar Sultan (3) to bring the rules in

accord with the governing principles of constitutional jurisprudence in matters of

public employment.

55 Fifthly, at this stage, we must also advert to another serious aspect which

arises from the judgment of the High Court. The High Court noticed in the course of

its analysis that the acceptance of the submission of the respondents would lead to

the appellant, on its administrative side, having to carry out piece-meal training for

candidates who are appointed to vacancies arising in the year after approval of the

merit list. The approval of the Governor was received on 7 May 2020. If vacancies

which arise between 7 May 2020 and 6 May 2021 are to be reckoned in making

appointments for the 2019 process, the training of candidates who are appointed

against the subsequent vacancies would take place piece-meal and in a sporadic

manner after the initial batch of recruits has been sent on training. Upon receipt of

the approval of the Governor, candidates to whom appointment orders were issued

joined their training and are in fact in the midst of their training. The High Court

without venturing a solution to this imbroglio came out with a suggestion in

paragraph 29 of this judgment, which is extracted below:

“29. There could arise one problem insofar as the High Court

having to carry out training, piece meal, of the recruits

appointed to the vacancies arising in the one year after the

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approval of the merit list. This could be solved by selecting for

training even persons whose vacancies have not arisen, in

anticipation. When appointments are made in June 2020 in

accordance with Rue 7(2) it could only be regularly made to

vacancies that actually arose till that date. The High Court

then would be faced with the problem of appointing fresh

recruits in the enabling year to arising vacancies who also

would have to be given training for one year which may put

the training process into jeopardy. We only observe that the

High Court on its administrative side in consultation with the

Government could device a procedure through which training

could be commenced even for successful candidates, finding

a place in the merit list, who could be appointed to the

anticipated vacancies, which vacancies definitely would arise

by the time their training is completed. This can especially be

managed since the validity of the list go beyond one year

from the date of approval of the merit list and the training can

commence only after the approval of the merit list. The

selection of recruits to anticipated vacancies for undergoing

training could also be made subject to the vacancy arising

and the new list coming into force with continuance in training

on a stipend till a regular appointment is made to the

vacancy. We do not intent these observations to be in the

nature of a direction and are only our thoughts, expressed

aloud.”

The solution which the High Court has indicated is, as it clarified, not in the nature of

a direction but “only our thoughts, expressed allowed”. The solution suggested by

the High Court is that candidates may be selected and sent for training even against

vacancies which have not arisen, in anticipation of vacancies arising in future. The

High Court observed that when appointments were made in June 2020, they could

only be regularly made to vacancies that actually arose until that date. The High

Court took notice of the fact that on its administrative side, appointment of fresh

recruits to vacancies which would arise in the ensuing year would put the training

process into jeopardy. However, it suggested that in consultation with the

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government, a procedure could be devised by which training could be commenced

for candidates against vacancies which have still not arisen and which would arise in

the future. The High Court even suggested that the trainees appointed against

possible future vacancies could be paid a stipend. The solution which has been

suggested by the High Court is plainly unacceptable. Persons are sent on training

on being appointed to the judicial service and there cannot be two categories of

trainees, one of whom receives a stipend since the vacancies for which they have

been selected are yet to arise. Moreover, there will be a serious discontent if not all

the candidates who are sent on training in expectation of future vacancies can be

accommodated in service. We have emphasized the above aspect, for the simple

reason that the High Court was cognizant of the serious problems which would

result in the administration if its decisions were to hold the field. The suggestion by

the High Court that the administration must send on training, candidates for whom

there are no vacancies in the service is contrary to law. In the event that some of the

candidates who are sent on training cannot be absorbed at a future date for want of

vacancies, it would lead to a serious dissatisfaction and be unfair to the candidates

who were sent for training. This would also cause a burden on the exchequer

requiring it to pay a stipend to persons who are yet to be recruited to the judicial

service, there being no present vacancies to accommodate them.

56 During the course of the submissions, reliance has been placed on behalf of

the respondents on the decision of this Court in Virendra S Hooda v. State of

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Haryana23. This was a case where the Haryana Public Service Commission issued

an advertisement for recruitment to the Executive Branch of the Haryana Civil

Service. The advertisement covered 12 posts, 7 of which were in the general

category and 5 were reserved. A written examination was held following which the

results were published. The appellants were in the list of candidates whose results

were declared but did not place sufficiently high to be appointed to the Civil Service

(Executive Branch). They were given alternate posts. The writ petitions filed by the

appellants were dismissed by the High Court and when the matter reached this

Court, they were granted liberty to file fresh writ petitions for getting appointments on

the basis of two circulars of 1957 and 1972 which laid down the procedure to be

adopted for selection against all notified additional vacancies which arise within six

months from the recommendation of the names. The High Court rejected the claim

again but this Court eventually took the view that when a policy was declared by the

State as to the manner of filling up the post and the policy is declared in terms of the

rules, the instructions not being contrary to the rules, the State ought to follow them.

Now significantly, the administrative instructions which were referred to were

subsequently repealed by legislation with retrospective effect. The validity of the law

was upheld by this Court in Virender Singh Hooda v. State of Haryana24, though

appointments made already in pursuance of the directions of this Court were left

undisturbed. The first decision in Virender Singh Hooda would have to be read in

the context of the facts of the case. Significantly, this Court did not have occasion to

23 (1999) 3 SCC 696 24 (2004) 12 SCC 588

PART H

consider the earlier decision including the principle that appointments cannot be

made, consistent with Articles 14 and 16, in excess of notified vacancies. This

principle was reiterated in Prem Singh (supra) which was prior to the decision in

Virender Singh. Be that as it may, we are of the view that in the above facts the

decision in Virender Singh Hooda will not assist the respondents and would have

to be confined to the peculiar circumstances in that case.

57 The respondents urged, on the basis of Annexures A-1 to A-3 produced

before the High Court along with the statement filed on 18 August 2020, and

referred to in the appendix to the impugned judgment, that more than 37 vacancies

actually existed as on 31 December 2019 and therefore the select list could be

operated for a larger number of vacancies. We are unable to subscribe to this

submission. The respondents participated in the selection process on the basis of 37

probable vacancies. Moreover, it has been submitted on behalf of the appellants

that, Annexure A-2 appended to the submissions would indicate that the total

number of vacancies as on 31 December 2019 were shown to be 43, which included

37 regular vacancies and 8 NCA vacancies. Out of the 37 regular vacancies only 32

could be included in the select list for the year 2019 because as against 5 vacancies

candidates were not available against the reserved turn. Those five vacancies have

been treated as NCA vacancies for 2020 and have been included in the list of

vacancies for the succeeding year. The 37 regular vacancies and 8 NCA vacancies

were notified for the year 2019, in accordance with the break up provided in Malik

Mazhar Sultan (3). It has been stated that 45 vacancies notified for selection year

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2019 included 4 vacancies under the 10 per cent addition that had to be made for

every year. However, only two of the four vacancies had actually arisen and hence

the figure of 43. On this basis, it has been submitted that there is no discrepancy in

the figures which were given in the statement filed before the High Court and the

statement filed on additional affidavit before this Court.

58 Finally, it has been urged on behalf of the respondents that the recruitment

process for the year 2020 has been delayed as a result of the onset of the Covid-19

pandemic. A recruitment notification was issued in the month of June 2020. It has

been submitted that the actual process of selection would take about one year

following which candidates would have to be sent on training. Hence it has been

submitted that candidates for recruitment year 2020 would be in a position to

actually commence judicial duties only in early 2023. 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.

PART H

59 For the reasons which we have indicated, we are of the view that the

judgment of the High Court cannot be sustained. We accordingly allow the appeals

and set aside the impugned judgment and order of the Division Bench of the High

Court of Kerala dated 26 August 2020. The writ petitions filed by the respondents

before the High Court shall stand dismissed. There shall be no order as to costs.

60 Pending applications, if any, stand disposed of.

…………......................................................J

[Dr Dhananjaya Y Chandrachud]

…..……......................................................J

[Indira Banerjee]

New Delhi;

January 11, 2021.

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