Shalu Varghese Case: Supreme Court Ruling on Criminal Law and Procedure

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0 11 Jul, 2023
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Mr. Shalu Varghese Vs. The State Of Kerala

Kerala High Court OP(KAT) NO. 195 OF 2022

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

TUESDAY, THE 11

DAY OF JULY 2023 / 20TH ASHADHA, 1945

OP(KAT) NO. 195 OF 2022

AGAINST THE ORDER/JUDGMENTOA (EKM) 1268/2020 OF KERALA ADMINISTRATIVE

TRIBUNAL, THIRUVANANTHAPURAM

PETITIONER/S:

1 MR. SHALU VARGHESE,

AGED 37 YEARS

S/O.M.M.VARGHESE, AGED 37 YEARS, RESIDING AT A & D APARTMENT,

1ST FLOOR, PALLIPARAMBU LANE, PONNOTH ROAD, KALOOR, KOCHI,

PIN - 682017

2 MS.PRABITHA.C.,

AGED 33 YEARS

D/O.C.PRABHAKARAN, CHAITHRAM HOUSE, MAKKARA PARAMBU,

MALAPPURAM DISTRICT,, PIN - 676507

BY ADVS.

P.MARTIN JOSE

P.PRIJITH

THOMAS P.KURUVILLA

R.GITHESH

AJAY BEN JOSE

MANJUNATH MENON

SACHIN JACOB AMBAT

ANNA LINDA V.J

HARIKRISHNAN S.

S.SREEKUMAR (SR.)

RESPONDENT/S:

1 THE STATE OF KERALA

REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT,

THIRUVANANTHAPURAM, PIN - 695001

2 THE PRINCIPAL SECRETARY,

THE DEPARTMENT OF LAW, NEAR DARBAR HALL SECRETARIAT

THIRUVANANTHAPURAM REPRESENTED BY THE SECRETARY, PIN - 695001

3 THE KERALA PUBLIC SERVICE COMMISSION,

THULASI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM

REPRESENTED BY ITS SECRETARY, PIN - 695004

BY ADVS.

GOVERNMENT PLEADER

SHRI.P.C.SASIDHARAN, SC, KPSC

2023/KER/46133

OTHER PRESENT:

SRI. K.P. HARISH-SR. GP

THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION

ON 11.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

2023/KER/46133

ALEXANDER THOMAS. & C. JAYACHANDRAN, JJ.

==================

OP(KAT) No.195/2022

(Arising out of the order dated 18.05.2022 in OA(Ekm) No.1268/2020 of the KAT, Addl.

Bench Ekm)

==================

Dated this the 11

day of July, 2023

J U D G M E N T

Alexander Thomas, J

The afore captioned Original Petition instituted under Articles

226 & 227 of the Constitution of India is directed against the

impugned Ext.P21 final order rendered on 18.05.2022 by the Kerala

Administrative Tribunal, Ernakulam Bench in OA(Ekm)

No.1268/2020. The petitioners herein are the applicants are the

applicants in the OA and the respondents herein are the respondents

in the OA.

2. Heard Sri.S.Sreekumar, learned Senior Counsel instructed

and assisted by Sri.Thomas.P.Kuruvila, learned Counsel appearing for

the petitioners herein, Sri.K.P.Harish, learned Senior Government

Pleader appearing for official respondents 1 & 2 herein and

Sri.P.C.Sasidharan, learned Standing Counsel appearing for R3

herein.

3. The prayers in the instant Ext.P1 Original Application,

OA(Ekm) No.1268/2020 filed by the petitioners herein before the

Kerala Administrative Tribunal, Ernakulam Bench are as follows:

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OP(KAT) No.195/2022

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“(i) To direct the 2

respondent to notify at least 125

vacancies to the post of Legal Assistant (Grade II) in the Law

Department (Government Secretariat), Government of Kerala to

the 3

respondent expeditiously and at any rate within a time limit

to be prescribed by this Tribunal.

(ii) Direct the 3

respondent to fill the vacancies that

arose in the post of Legal Assistant (Grade II) in the Law

Department (Government Secretariat), Government of Kerala

during the years 2016-2017 from Annexure A2 ranklist.

(iii) To direct the 3

respondents to extend the validity of

Annexure A2 ranklist in view of the COVID 19 pandemic.

(iv) To direct the 3

respondent to make appointments to

the vacant posts of Legal Assistant (Grade II) in the Law

Department (Government Secretariat), Government of Kerala

within a time limit to be fixed by this Tribunal.

(v) Direct the respondents to treat the vacancies that may

arise in 2021, 2022, 2023 as anticipated vacancies and fill the same

from Annexure A2 ranklist.

(vi) Issue such other directions or orders as this Tribunal

deem fit and proper in the facts and circumstances of the case, in

the interest of justice.

4. The Tribunal after hearing both sides, has rendered the

impugned Ext.P10 final verdict, dismissing the OA, on the ground

that the factual case of the applicant that there exists more vacancies

than those that have already been reported by the appointing

authority to the PSC, is factually not correct and that 93 advises have

already been made from Annexure A2 ranklist dated 25.09.2017,

which has expired on 24.09.2020 and that all substantive vacancies

reported by the appointing authority to the PSC during the currency

of the ranklist has already been duly advised. Hence, the Original

Petition has been dismissed.

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5. We have heard both sides in extenso and have considered the

rival pleadings and materials on record. In the instant case, the

petitioners claim to be candidates who have responded to Annexure

A1 selection notification dated 19.06.2013 issued by the respondent

Kerala Public Service Commission for selection and appointment to

the post of Legal Assistant Grade II, Law Department, Government of

Kerala. According to the petitioners, they have participated in the

selection process and have been included in Annexure A2 ranklist

dated 25.09.2017 finalized by the respondent Public Service

Commission, which has expired on 24.09.2020. Further that the

present OA had been filed by the petitioners before the Tribunal on

20.08.2020. Further, as per the interim prayer made by the

petitioners, the Tribunal has passed interim order dated 18.09.2020,

directing the respondent State Government to provisionally report 60

vacancies of Legal Assistant Grade II to the respondent PSC before

the expiry of the ranklist on 24.09.2020. It appears to be common

ground that the respondent State Government has provisionally

reported 60 such vacancies in the post of Legal Assistant Grade II, to

the respondent PSC, and the said provisional requisition has reached

the Office of the PSC before the expiry of the ranklist on 24.09.2020.

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It is the specific case of the respondent State Government that there

were no such substantive vacancies for being so reported, but the

respondent State Government has only complied with the interim

direction of the Tribunal and the report of vacancy has been made

provisionally and subject to the result of the OA. The main case of the

petitioners is that the cadre strength in the post of Legal Assistant

Grade II should be actually reckoned as 122 posts, going by the

matters referred to in Annexure A11 previous verdict of the Tribunal

rendered on 30.01.2013 in OA No. 915/2012 which was in relation to

the previous ranklist dated 07.06.2010. Further that, even going by

the admitted case of the respondent State Government and the

respondent PSC, only 93 advices have been made from Annexure A1

ranklist and that therefore atleast 29 more vacancies (cadre strength

being reckoned as 122 posts – 93 advices made from the present

ranklist = 29 vacancies), should have been reported by the

respondent State Government to the PSC. That since on the basis of

the interlocutory direction, the appointing authority has already

reported 60 vacancies provisionally to the PSC, which has reached the

respondent PSC Office before the expiry of the ranklist, these 29

vacancies should be treated as substantive vacancies and should be

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adjusted as against these 60 vacancies so provisionally reported and

that therefore, on this premise, Sri.S.Sreekumar, learned Senior

Counsel instructed by Sri.Thomas P. Kuruvila, learned Counsel

appearing for the petitioners would urge before this Court that this

Court may set aside the verdict of the Tribunal and may issue a

mandamus directing the respondent PSC to advice 29 more vacancies

from Annexure A2 ranklist and that 29 vacancies shou ld be

determined as substantive vacancies existing prior to the expiry of

ranklist on 24.09.2020.

6. Whereas the specific case of the respondent State

Government is that the cadre strength in the post of Legal Assistant

Grade I and Assistant Legal Officer has been fixed as 93 posts and not

123 posts as urged by the petitioners. Further that, it is specifically

mandated in Annexure R2(b) GO(MS) No.82/2016/Law da ted

18.05.2016 that the internal ratio of Legal Assistant Grade II, Legal

Assistant Grade I and Assistant Legal Officer is 1:1:1 and therefore out

of the total 93 posts for these 3 categories, 31 posts are set apart as

the cadre strength of Legal Assistant Grade II, 31 posts are also set

apart as the authorized cadre strength of Legal Assistant Grade I and

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the balance 31 posts are also fixed as the cadre strength of the next

higher category post of Assistant Legal Officer. In other words, the

specific case of the respondent State Government is that, on and with

effect from the promulgation of Annexure R2(b) GO(Ms)

No.82/2016/Law dated 18.05.2016, the cadre strength of all the three

categories is only 93 posts, out of which the specific cadre strength

authorized by the Government in respect of Legal Assistants Grade II

is only 31 posts. Hence, it is urged by the Senior Government Pleader

that the factual reference made in Annexure A11 previous verdict of

the Tribunal as if the cadre strength should be reckoned as 122 posts

does not have any relevance, since A11 was rendered on 30.01.2013,

whereas Annexure R2(b) GO was issued subsequently on 18.05.2016

and that the cadre controlling authority who has the sole and

exclusive power to fix the cadre strength is the respondent State

Government etc.

7. After hearing both sides, we note that no challenge has

been mounted by the petitioners as against the legality and

correctness of Annexure R2(b) GO dated 18.05.2016. There cannot be

any two views that the sole cadre controlling authority within whose

sole province is the authority to fix the cadre strength, is the

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respondent State Government. The respondent State Government has

fixed the total cadre strength of all the three categories as 93 posts

and that of Legal Assistants Grade II as 31 posts. Therefore, we

cannot proceed on the premise that the cadre strength should be

reckoned as 122 posts as urged by the petitioners, merely because

there is a factual reference in that regard in Annexure A11 verdict

rendered by the Tribunal in respect of the previous year selection

process that was closed long ago.

7. There is no dispute that the appointing authority has

already reported various vacancies before the commencement of the

ranklist and during the currency of the ranklist and altogether 93

advices have already made by the respondent PSC to the post of Legal

Assistant Grade II by advising candidates who are included in

Annexure A2 ranklist dated 25.09.2017, whose maximum lifespan has

expired on 24.09.2020. Further, we also note that the Apex Court has

also not appreciated the process of mechanically reporting vacancies

at the instance of interim orders passed in judicial proceedings as can

be seen from a reading of paragraph No.26 of the decision of the Apex

Court in Director of Indian Systems of Medicine & Another v.

Dr.Susmi C.P. & Another (SLP (C) No.24214-24221/2019) rendered

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- : 8 :-

on 08.12.2021 reported in [2021 SCC Online SC 1188] which reads as

follows:

26. “It, is therefore, as against vacancies that are reported

to the KPSC, that the candidates have some semblance of a right.

However, as far as those not reported are concerned, the candidates

cannot claim a right per se. It is possible that in given situations, the

state may be lethargic, or even may not wish to report vacancies. In

such situations, undoubtedly the individuals awaiting appointment

may have recourse to judicial remedies. In such proceedings, the

government or the concerned agency can furnish a suitable

explanation. If that is found to be arbitrary, appropriate directions

may follow. However, the procedure in all such cases, would be to

consider the state’s response. In the present case, the KAT in this

court’s opinion, entirely misdirected itself in making an inquiry

whether vacancies had arisen in June 2017, with promotion of some

Medical Officers. As the department explained, those promotions

could not automatically result in vacancies, having regard to the fact

that excess number of Medical Officers were on the rolls.

Furthermore, the KAT in our opinion, should not have inquired into

the matter, once it was reported that all vacancies that could be

reported, had been reported- as is evident from the reply filed by the

department, as well as the tabular chart in it.”

8. The Tribunal has given detailed reasons for repelling the

factual versions of the petitioners that vacancies over and above the

93 vacancies already reported by the PSC, should have been utilised

for advice as can be seen from a reading of paragraphs 22 to 28 of the

impugned Ext.P21 verdict. It may be profitable to refer to the

contents of paragraphs 22 to 28 of the verdict of the Tribunal at

Ext.P21 which reads as follows:

“22. Whether the contentions put forth as to existence of

vacancies, could be sustained or the reliefs as sought for granted

has to be considered on the touchstone of the dictum laid down by

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the Hon'ble Supreme Court and also in the light of the figures as

provided by both sides. The adjudication by this Tribunal can only

be whether the appointing authority i.e. the second respondent

has reported all the existing substantive vacancies to the Public

Service Commission for advice and whether there was any

lethargy or inaction on the part of the respondent.

23. As per the pleadings of the applicants, 64 retirement

vacancies have arisen, three vacancies due to death, 10 due to

relieving, 64 deputation vacancies, 22 promotion vacancies and 16

creation of posts, against which only 38 have been reported to the

Public Service Commission resulting in 141 vacancies remaining

to be reported. As against the same, the second respondent's

contention is that 65 retirement vacancies have arisen, 3 vacancies

due to death, 10 relieving vacancies, 60 deputation vacancies, 17

promotion vacancies and 9 post creation vacancies, of which 63

vacancies were reported to the Public Service Commission.

Subtracting this 63 from 164, 101 vacancies remained to be

reported.

24. The manner in which the 101 vacancies are filled up, is

also provided. A total of 96 Law Officers were repatriated and 5

were appointed through other means ie. from Translators, Dying

in harness, etc, which adds up of to 104. Therefore, according to

the respondents, no further vacancies were available for advice

and appointment from Annexure A2 ranked list. It is also stated

that the additional numbers as provided by the applicants i.e., 40

were due to the duplication in reckoning the vacancies. The

extension orders granted to officers on deputation were taken as

fresh deputation and as against 9 newly created posts, the

applicants noted it as 16. The respondents have also produced the

details of such duplication of vacancies in its Reconciliation

Statement. The Reconciliation Statement is annexed to and shall

form part of this order.

25. The main contention of the applicants is that 95 officers

were repatriated against which 82 were not reported. This

contention is raised on the basis that only 13 repatriated officers

were in the entry cadre of Legal Assistant Grade II and the other

82 were in higher cadres. It is to be noted that on repatriation and

on the officers rejoining the parent department in their respective

cadre, necessary reversions will have to be effected which reflects

to the entry cadre of Legal Assistant Grade II.

26. The contention that 48 vacancies reported in 2013,

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2014 and 2015 were not filled up from the vacancies of 2017 and

2018 cannot be sustained in the light of the additional reply

statement and the details of the repatriated officers as provided

therein. 12 Judicial Magistrates were returned to the Law

Department during 2016 and further 2+9 were returned from the

personal staff of Ministers and for other reasons and 8 more from

Kerala State Housing Board, Kerala State Road Transport

Corporation and Kerala Water Authority were repatriated and

Officers were also repatriated due to abolition of posts in the

Kerala State Planning Board and State Urban Development

Department. In addition to the same, pursuant to the directions

by this Tribunal in OA No.915/2012 and connected cases dated

30.01.2013, 12 posts had to be filled from departmental hands

against the previous ranked list which had expired and therefore,

it was filled from Annexure A2 ranked list and the 48 vacancies

are accordingly accounted for.

27. The further contention that the retirement vacancies,

relieving vacancies, vacancies arising due to death and newly

created posts were not reported, is no longer available in the light

of the figures provided in the Reconciliation Statement.

28. The promotion vacancies, 54 in number have admittedly

arisen after the expiry of the ranked list. 42 promotions of Legal

Assistant Grade to Grade I were carried out as per order G.O.(Rt)

No.1070/2021/Law dated 29.12.2020. Further, 12 promotions

were also carried out after the expiry of the list. As per Rule 14 of

the Public Service Commission Rules of Procedure, the

Commission is -to advise candidates for all the vacancies reported

and pending before it and the vacancies which may be reported

during the period of existence of the ranked list. The ranked list

has admittedly ceased to exist on 24.9.2020 on completion of its 3

year tenure as per Rule 13 of the Public Service Commission Rules

of Procedure. The promotion, vacancies which have arisen

subsequent to the expiry of the ranked list could not be reported

for advice from an expired ranked list. No direction could be

issued to extend the life span of the ranked list in exercise of the

powers under the 5th proviso to Rule 13 of the PSC Rules of

Procedure, when all the vacancies that have arisen during the

existence of the ranked list is accounted for and no further

vacancies remained to be reported as on the date of expiry of the

ranked list.

The Original Application therefore fails and the same is accordingly

dismissed.”

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9. After hearing both sides, we are not in a position to hold

that the abovesaid factual appreciation made by the Tribunal repelling

the factual versions of the petitioners are in any manner unreasonable

or manifestly perverse. Further, Sri.P.C.Sasidharan, learned Standing

Counsel for the respondent Kerala Public Service Commission has

pointed out that the subsequent selection process has already been set

in motion by the Public Service Commission and the new ranklist for

the post of Legal Assistant Grade II was finalized by the Public Service

Commission on 27.05.2023 as Category No.478/2020 and that the

Commission has already issued Advice Memos to some of the

candidates included in the said new ranklist dated 27.05.2023 for the

post of Legal Assistant Grade II, Law Department in the Direct

Recruitment Quota.

10. The Division Bench of this Court in the case in Soniya Alex

& Others vs. State of Kerala & Others (Judgment dated 03.03.2017 in

OP(KAT) No.111/2014) [2017 KHC 465]= [2017 (4) KLT 774] = [ILR

2017 (2) Ker 967], has held that candidates cannot claim any right to

urge that all the vacancies arising over a period of three years should be

filled up necessarily from one ranklist and that after the expiry of the

minimum one year period of the ranklist as envisaged in Rule 13 of the

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OP(KAT) No.195/2022

- : 12 :-

Kerala Public Service Commission Rules of Procedure, the Commission

is at liberty to finalize a new ranklist and the recruitment to Public

Services is an on-going and continuous process etc.

11. In the decision of this Court in A.Sreekantan Nair & Others

v. N.K.Muraleedharan Nair & Others [1991 Lab IC 2163]=1991 (2) KLT

SN 3 (case Nos. 4) = MANU/KE/0647/1991, it has been he ld in

paragraphs 25 & 26 thereof that equal opportunity for public

employment is one of the fundamental freedoms guaranteed by the

Constitution of India and that Public Employment Opportunity is

national wealth or property of the nation in which all citizens are

equally entitled to, subject of course to the possession of qualifications

necessary for holding the post and that no class of people can

monopolise public employment for any reason and the right to

employment is no private property, but one which has to be shared

equally by all those who are eligible for it. Further that particularly in

this country of perennial unemployment, the guarantee of equal

opportunity in public employment assumes great importance and that

such opportunity must be available to succeeding generations of young

men and women who becomes eligible for appointment from time to

time by acquiring the necessary qualifications etc. It should not be that

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the right to public employment get concentrated in a few hands and the

right to compete and be selected for employment is consequently

denied for long periods altogether. That as far as possible, young

talented and succeeding generations, ought to find their revenues in

public employment if they so desires and they should not be shut out

from appointment, for the mere reason that selections have been made

long ago on an imaginary or inflated basis and those included in the old

select list remains to be appointed. Further that otherwise the

guarantee under the Articles 14 & 16 of the Constitution of India will

become illusory and creation of such reservoirs from whic h

appointments are to be made for years to come leads to arbitrariness. It

may be profitable to refer to paragraphs Nos.25 & 26 of the decision of

this Court in A.Sreekantan Nair’s case supra which reads as follows:

“

25. Equal opportunity for public employment is one of the

fundamental freedoms guaranteed by the Constitution. PubThat as

far as possible, ylic employment opportunity is national wealth or

property of the nation which all citizens are equally entitled to

subject of course to the possession of qualifications necessary for

holding the post. No class of people can monopolise public

employment for any reason. Right to employment is no private

property, but one to be shared equally by all those who are eligible

for it.

26. In this country of perennial unemployment particularly,

the guarantee of equal opportunity in public employment assumes

great importance Such opportunity must be available to

succeeding generations of young men who become eligible for

appointment from time to time by acquiring the necessary

qualifications. It should not be that the right to employment gets

concentrated in a few hands and the right to compete and be

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selected for employment consequently denied for long periods

altogether. As far as possible, young talent and succeeding

generations ought to find their avenues in public employment if so

desired and they should not be shut out from appointment for the

mere reason that selections have been made long ago on an

imaginary or inflated basis and those included in the old select

lists remain to be appointed. Otherwise the guarantees under

Articles 14 and 16 will become illusory. Creation of such reservoirs

from which appointments are to be made for years to come leads

to arbitrariness for the reason that any advice beyond the

necessities of a particular period will result in stagnation of the list

for a long number of years with resultant denial of opportunities

for the subsequent eligible candidates.”

12. Now it may also be pertinent to refer to a recent decision

rendered by the Apex Court in relation to Munsiff-Magistrate

selection in the State of Kerala, in the case

High Court of Kerala v.

Reshma A. [(2021) 3 SCC 755]. Without getting into the details, it

may be pertinent to note the rules involved in that selection, which is

“Special Rules in respect of Kerala Judicial Service” and Category (2)

of Rule 3 thereof is in relation to the post of Munsiff-Magistrate. The

unamended Rule 7 thereof has been given in para 14 of the decision in

A.Reshma's case (2021) 3 SCC 755, which reads as follows:

“Rule 7. (1) .. .... ...

(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.”

(emphasis supplied)

13. The abovesaid rules were amended w.e.f. 19.1.2019,

pursuant to which the last sentence of Rule 7(1) was substituted (see

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para 16 of Reshmas case supra). As per the said amendment, Rule

7(2) was substituted by the following provision (see para 16 of

Reshma's case supra)

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 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.’”

(emphasis supplied).

So the substance of Rule 7(2) is that the approved list shall come into

force from the date of approval of the competent authority and shall be

valid till the notified vacancies and the vacancies that may arise.

14. The unamended Rule No.7(2) earlier stipulated that the

approved list will be in force for a period of three years or until a fresh

list is prepared and after the 2019 amendment, the stipulation in Rule

7(2) is that the approved list shall be valid till 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 list comes into force,

whichever is earlier.

15. Only for easy comparison, it may be apposite to extract the

contents of the operative portion of Rule 13 of the Kerala Public Service

Commission Rules of Procedure, which reads as follows:

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“

Rule 13. The ranked lists published by the Commission shall

remain in force for a period of one years from the date on which it

was brought into force provided that the said list will continue to be

in force till the publication of a new list after the expiry of the

minimum period of one year or till the expiry of three years

whichever is earlier.

5 provisos thereto are omitted.

xxx xxx xxx ”]

16. The list in question in that case was approved by the

competent authority on 7.5.2020 and the one year period thereof was

upto 6.5.2021 (see paras 3 & 4 in

Reshma's case supra [(2021) 3 SCC

755]). The subject writ petitions were filed before this Court in May

2020, contending that as on 7.5.2020 and thereafter, several vacancies

of Munsiff-Magistrate had arisen, which were not specified in the

selection notification inviting applications. The petitioners therein

claimed that, in accordance with Rule 7(2), as amended w.e.f.

14.1.2019, all vacancies which arise for a period of one year after

approval of the merit list are to be filled up from the approved merit

list. The specific factual plea was that the appointments of Munsiff

Magistrates from the said approved list must not be limited to 32

vacancies and must take into account all other vacancies that have

arisen or which may arise till 6.5.2021, ie. within one year from the

date on which the merit list dated 7.5.2020 was notified.

17. Per contra, the High Court on the administrative side

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contended that appointments to vacancies in the judicial service are

regulated by statutory rules and that the directions and time line fixed

by the Apex Court by virtue of directions issued under Art.142 of the

Constitution of India are contained in the cases as in Malik Mazhar

Sultan (3) v. Uttar Pradesh Public Service Commission [(2008) 17

SCC 703]. Relying on Malik Mazhar Sultan's case supra [(2008) 17

SCC 703]

the respondent administration therein contended that the

selection notification inviting applications is issued only for those

vacancies that are available till 31st of December of the year in which

the notification is issued and only these notified vacancies can be filled

by the recruitment process of a given year. During the pendency of the

writ petitions a fresh selection notification dated 30.6.2020 was issued

by the High Court on the administrative side for 47 posts of Munsiff-

Magistrate. The Single Bench of this Court in the impugned judgment

rendered on 9.7.2020

{(Swetha Sasikumar v. State of Kerala [2020

SCC Online Ker.2633]}

held that Rule 7(2) provides that vacancies

existing and arising within one year from the date of approval of the list

are to be filled up from the select list, unless a fresh list comes into

force before the last date of the year. The learned Single Judge thus

held that, since the special rules govern the selection and appointment,

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the respondent administration therein could not deny appointment on

the ground that the recruitment would not fall within the time lines

prescribed in Malik Mazhar Sultan's (3) case supra [(2008) 17 SCC

703] and it was specifically held that denial of appointment to the

additional vacancies would be violative of Arts.14 and 16 of the

Constitution of India, etc. Thus, the prayers in the Writ Petition were

allowed and the respondent administration therein was directed to

forward an additional list of candidates from the approval list dated

20.2.2020 to the competent authority for approval and appointment.

The abovesaid judgment of the learned Single Judge in Swetha

Sasikumar's case supra was affirmed by a Division Bench of this Court

in intra court appeal, wherein it was held that the 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 of the

list or till a fresh list comes into force and that consequently the merit

list approved on 7.5.2020 would be valid for vacancies till 6.5.2021 or

till a fresh list comes into force, whichever is earlier, etc. Aggrieved by

the abovesaid verdict in the writ proceedings, the respondent

administration therein (High Court on the administrative side)

preferred SLPs, which resulted in the civil appeals, which culminated

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in the judgment dated 11.1.2021 in the abovesaid civil appeal

{A.Reshma's case supra [(2021) 3 SCC 755]}. Therein the Apex Court

specifically noted the impact of a series of directions issued by the Apex

Court under Art.142 of the Constitution, regarding timely and annual

based selection to fill up posts in judicial services like Munsiff

Magistrate, etc. and the time lines given by the Apex Court in those

series of judgments as in Malik Mazhar Sultan's case supra [(2008) 17

SCC 703] and ultimately upheld the contentions and pleas of the

appellant therein (High Court on the administrative side) and reversed

and set aside the impugned judgments of the Division Bench and the

Single Bench, which interfered in the matter. Interference made by the

Apex Court was on various grounds. One such vital ground was on the

basis of the well known constitutional principle that ordinarily

appointment of direct recruitment selection notifications should be

confined to notified vacancies, as otherwise it would affect the rights of

later qualified persons for public employment, which is guaranteed

under Arts.14 and 16 of the Constitution of India, etc. The Apex Court

in paras 48 to 53, 71.2, etc. has dealt with the various laws enunciated

by the Apex Court on the issue as to limiting appointment, on the basis

of selection process, to the notified vacancies, etc. The case laws

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elaborately considered by the Apex Court in A.Reshma's case supra

[(2021) 3 SCC 755] are with reference to the decisions as in

Prem Singh

v. Haryana State Electricity Board [(1996) 4 SCC 319, para 25], Rakhi

Ray v. High Court of Delhi, [(2010) 2 SCC 637], UOI v. Ishwar Singh

Khatri, [1992 Supp (3) SCC 84], Gujarat State Dy. Executive Engineers'

Assn. v. State of Gujarat, [1994 Supp (2) SCC 591], State of Bihar v.

Secretariat Asstt. Successful Examinees Union 1986, [(1994) 1 SCC

126], Ashok Kumar v. Banking Service Recruitment Board [(1996) 1

SCC 283], Anurag Kumar Singh v. State of Uttarakhand [(2016) 9 SCC

426], Rahul Dutta v. State of Bihar [(2019) 5 SCC 158], Bedanga

Talukdar v. Saifudaullah Khan [(2011) 12 SCC 85], etc.

18. Brief reference to 2 of such decisions may not be out of place

at this instance. A 3-Judge Bench of the Apex Court in Rakhi Ray v.

High Court of Delhi, [(2010) 2 SCC 637] has held as follows in paras 7

and 12 as follows:

“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

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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].)

xxx xxx xxx

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 list/waiting list becomes meaningless and

cannot be pressed in service any more.”

19. In

Bedanga Talukdar's case supra Khan [(2011) 12 SCC

85], it has been held in para 29 thereof as follows (see pages 92 and 93

of the SCC report):

“

29. We have considered the entire matter in detail. 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

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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.”

20. We are fully conscious of the difference in the rules of

procedure regulating selections as in the instant case, in the State

of Kerala, in view of the provisions contained in Rules 13 and 14 of

the PSC Rules of Procedure. However, we have referred these

decisions only to underscore the jurisprudential basis of the

reasonings of those judgments, which is that, the right to equal

opportunity for public employment guaranteed to candidates to get

qualified, subsequent to issuance of a selection notification, flows

from Arts.14 and 16 of the Constitution of India. It is precisely the

abovesaid aspects that form the bedrock of the jurisprudential

foundation laid down by this Court in decisions as in

A.Sreekandan

Nair & Ors. v. M.K.Muralidharan Nair & Ors. [1991 Lab IC 2163 =

1991 (2) KLT SN 3 (case No.4) = MANU/KE/0647- 1991, paras 25

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to 28, etc. thereof. So also, we have referred to the abovesaid

decisions of the Apex Court in A.Reshma's case supra (2021) 3 SCC

755, to appreciate the specific interpretative approach taken

therein by the Apex Court that the rules of selection process should

be interpreted in a manner, which is harmonious with the

constitutional rights guaranteed for equal opportunity for public

employment, given to candidates who qualify subsequently in

terms of Arts.14 and 16 as also to be in consonance with the dictum

laid down by the Apex Court, etc. The jurisprudential perspectives

of the Apex Court in A.Reshma's case supra (2021) 3 SCC 755,

should also be examined through the prism of the abovesaid Rule

7(2) concerned in that case as well as the operative portion of Rule

13 of PSC Rules of Procedure.

20. In the light of these aspects when the cadre strength of

the post of Legal Assistant Grade II is as determined by the State

Government in terms of Annexure R2(b) GO and as 93 advices

have already been made by the respondent PSC in respect of

candidates included in Annexure A2 ranklist and as the impugned

fact findings made by the Tribunal supra cannot be said to be

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unreasonable or perverse and as the new ranklist has already come

into force, we are not in any manner inclined to interfere with the

well considered verdict of the Tribunal.

The Original Petition fails and the same will stand dismissed.

sd/-

ALEXANDER THOMAS, JUDGE

sd/-

C. JAYACHANDRAN, JUDGE

Nsd

2023/KER/46133

APPENDIX OF OP(KAT) 195/2022

PETITIONER ANNEXURES

Annexure A1 TRUE COPY OF NOTIFICATION NO: 121/2013 INVITING

APPLICATIONS TO THE POST OF LEGAL ASSISTANT

(GRADE II) IN THE LAW DEPARTMENT (GOVERNMENT

SECRETARIAT) BY WAY OF DIRECT RECRUITMENT

Annexure A2 TRUE COPY OF THE RANK LIST DATED 25-9-2017 WITH

RESPECT TO ANNEXURE A1 NOTIFICATION

Annexure A3 TRUE COPY OF THE QUERY UNDER RIGHT TO INFORMATION

ACT SUBMITTED TO 2ND RESPONDENT DATED 04-10-2017

Annexure A3(a) TRUE COPY OF REPLY FROM THE 2ND RESPONDENT DATED

6-11-2017 OBTAINED UNDER THE RIGHT TO INFORMATION

ACT, 2005

Annexure A3(b) TRUE COPY OF REPLY FROM THE 2ND RESPONDENT DATED

2-6-2018 OBTAINED UNDER THE RIGHT TO INFORMATION

ACT, 2005

Annexure A3(c) TRUE COPY OF THE NAMES AND DETAILS OF THE 64

PERSONS WHO HAVE RETIRED AS PER ANNEXURE A3(A)

AND ANNEXURE A3(B)

Annexure A4 TRUE COPY OF GO (RT) NO: 1081/2017/LAW DATED 16-

8-2017

Annexure A4(a) TRUE COPY OF GO (RT) NO: 44/2018/LAW DATED 16-1-

2018

Annexure A(b) TRUE COPY OF GO (RT) NO: 54/2018/LAW DATED 18-1-

2018

Annexure A4(c) TRUE COPY OF GO (RT) NO: 118/2019/LAW DATED 31-1-

2019

Annexure A4(d) TRUE COPY OF GO (RT) NO: 1200/2019/LAW DATED 26-

8-2019

Annexure A4(e) TRUE COPY OF GO (RT) NO: 1227/2019/LAW DATED 29-

8-2019.

Annexure A4(f) TRUE COPY OF THE NAMES AND DETAILS OF THE PERSONS

WHO ARE COVERED BY ANNEXURE A4 TO ANNEXURE A4(E)

Annexure A5 TRUE COPY OF GO (RT) NO: 252/2018/LAW DATED 6-3-

2018

Annexure A5(a) TRUE COPY OF GO (RT) NO: 317/2018/LAW DATED 20-3-

2018

Annexure A5(b) TRUE COPY OF GO (RT) NO: 227/2018/LAW DATED 4-5-

2018

Annexure A5(c) TRUE COPY OF GO (RT) NO: 555/2018/LAW DATED 8-5-

2018

Annexure A5(d) TRUE COPY OF GO (RT) NO: 611/2018/ SJD DATED 26-

10-2018

Annexure A5(e) TRUE COPY OF GO (RT) NO: 1101/2019/H &FW DATED

14-5-2019

Annexure A5(f) TRUE COPY OF GO (RT) NO: 01/2019/LAW DATED 1-1-

2019

2023/KER/46133

Annexure A5(g) TRUE COPY OF GO (RT) NO: 870/2019/LAW DATED 5-7-

2019

Annexure A5(h) TRUE COPY OF GO (RT) NO: 919/2019/LAW DATED 8-7-

2019

Annexure A5(i) TRUE COPY OF GO (RT) NO: 920/2019/LAW DATED 8-7-

2019

Annexure A5(j) TRUE COPY OF GO (RT) NO: 1176/2019/LAW DATED 22-

8-2019

Annexure A5(k) TRUE COPY OF GO (RT) NO: 535/2019/SJD DATED 27-8-

2019

Annexure A5(l) TRUE COPY OF GO (RT) NO: 1298/2019/LAW DATED 23-

9-2019

Annexure A5(m) TRUE COPY OF GO (RT) NO: 1260/2019/LAW DATED 7-9-

2019

Annexure A5(n) TRUE COPY OF GO (RT) NO: 1299/2019/LAW DATED 23-

9-2019

Annexure A5(o) TRUE COPY OF GO (RT) NO: 1488/2019/LAW DATED 8-11

—2019

Annexure A5(p) TRUE COPY OF THE NAMES AND DETAILS OF THE PERSONS

COVERED BY THE ANNEXURE A5 TO ANNEXURE A5(O)

Annexure A6 TRUE COPY OF GO (RT) NO: 24/2017/SOCIAL JUSTICE

DEPARTMENT DATED 30-6-2017

Annexure A6(a) TRUE COPY OF GO (MS) NO: 149/2017/LAW DATED 8-12-

2017

Annexure A6(b) TRUE COPY OF GO (RT) NO: 106/2019/LSGD DATED 16-

8-2019

Annexure A6(c) TRUE COPY OF GO (MS) NO: 281/2018/HIGHER

EDUCATION DEPARTMENT DATED 22-11-2018

Annexure A6(d) TRUE COPY OF CABINET DECISION DATED 25-9-2019

Annexure A6(e) TRUE COPY OF DETAILS OF THE 16 POSTS CREATED AS

PER ANNEXURE A6 TO ANNEXURE A6(D)

Annexure A7 TRUE COPY OF REPRESENTATION SUBMITTED BY THE

APPLICANTS BEFORE THE HON'BLE CHIEF MINISTER,

GOVERNMENT OF KERALA

Annexure A8 TRUE COPY OF REPRESENTATION SUBMITTED BY THE

APPLICANTS BEFORE THE HON'BLE LAW MINISTER

GOVERNMENT OF KERALA

Annexure A9 TRUE COPY OF NOTIFICATION CATEGORY NO.478/2020

FOR 3 ANTICIPATED VACANCIES TO THE POST OF LEGAL

ASSISTANT GRADE-II ON 31-12-2020

Annexure A9(a) TRUE COPY OF NOTIFICATION CATEGORY NO: 479/2020

ISSUED BY THE 3RD RESPONDENT FOR 2 ANTICIPATED

VACANCIES TO THE POST OF LEGAL ASSISTANT GRADE -

II RESERVED FOR APPOINTMENT FROM ANY CATEGORY IN

KERALA SECRETARIAT SUBORDINATE SERVICE

Annexure A9(b) TRUE COPY OF NOTIFICATION CATEGORY NO: 480/2020

ISSUED BY THE 3RD RESPONDENT FOR 2 ANTICIPATED

VACANCIES TO THE POST OF LEGAL ASSISTANT GRADE -

II RESERVED FOR APPOINTMENT BY TRANSFER FROM ANY

2023/KER/46133

CATEGORY IN ANY DEPARTMENT UNDER THE GOVT. OR IN

THE SERVICE OF HIGH COURT OF KERALA

Annexure A10 TRUE COPY OF GO(EX) NO: 1084/2020/LAW DATED 29-

12-2020 PROMOTING 42 PERSONS IN THE RANK OF LEGAL

ASSISTANT GRADE - II TO LEGAL ASSISTANT GRADE - I

Annexure R2(a) TRUE COPY OF THE PROFORMA REPORT OF VACANCIES

THROUGH E-VACANCY

Annexure R2(b) TRUE COPY OF G.O.(MS) NO.82/2016/LAW DATED 18-05-

2016

Annexure R2(c) TRUE COPY OF ORDER NO.B1(A) 61/2016 DATED 01-06-

2016 OF THE KERALA HIGH COURT

Annexure R2(d) TRUE COPY OF THE LIST OF CANDIDATES GIVEN

APPOINTMENT AND JOINED IN THE LAW DEPARTMENT FROM

THE PSC RANK LISTS WHICH EXPIRED ON 25-09-2020

Annexure R2(e) TRUE COPY OF A DETAILED LISTS OF LEGAL ASSISTANTS

IN THE LAW DEPARTMENT

Annexure R2(f) TRUE COPY OF THE RELEVANT PAGES OF THE KERALA

SECRETARIAT SUBORDINATE SERVICE SPECIAL RULE

Annexure A11 TRUE COPY OF ORDER OF THIS HON'BLE TRIBUNAL DATED

30-01-2013 IN O.A.NO.915 OF 2012 AND CONNECTED

CASES

Annexure A12 TRUE COPY OF APPOINTMENT CHART NO: RIA

(1)17692/10/GW CATEGORY NO: 455/07

Annexure A13 TRUE COPY OF 1ST APPOINTMENT CHART FOR CATEGORY

121/13, 122/13, 123/13 DATED 28-11-2017

Annexure A13(a) TRUE COPY OF 1ST APPOINTMENT CHART FOR CATEGORY

121/13, 122/13, 123/13 DATED 22-05-2018

Annexure A14 TRUE COPY OF PROFORMA FOR REPORTING VACANCIES