High Court of Kerala vs Reshma A. & Others etc.

Service Law: Selection – Process of selection in making appointments to public posts – Held: Is subject to the guarantees of equality under Art.14 and of equality in matters of public employment under Art.16 – The process of selection must comport with the principles of reasonableness – Constitution of India – Arts. 14 and

16. Service Law: Selection – Anticipated vacancies – Meaning of – Held: 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.

Service Law: Selection – Actual and anticipated vacancies – Difference from future vacancies – Held: 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 – Future vacancies which arise during a subsequent recruitment year cannot be treated as anticipated vacancies of a previous selection year. Words and Phrases – Expression ‘probable’ – Meaning of.

Allowing the appeals, the Court

HELD:1. 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 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. [Para 45][329-C-H]

2.1. The Kerala Rules 1991 preceded the judgment in Malik Mazhar Sultan (3) delivered on 4th January, 2007. 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. 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. [Para 48][331-E-H]

2.2. 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 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. 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 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 of the Constitution 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 Malik Mazhar Sultan (3). [Para 48][332-E-H; 333-A-D]

2.3. 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. [Para 48][334-F-G]

3. 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 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, 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, this was exactly what was done by the appellant. [Para 49][334-G-H; 335-A-C]

4.1. There are significant problems in accepting the line of interpretation which found acceptance by the High Court. [Para 50][355-E]

4.2. 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. [Para 51][335-E-G]

4.3. Secondly, adopting such interpretation would lead to serious anomalies, as consequently, 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. 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. [Para 52][335-H; 336-C-D]

4.4 There is a third anomaly which arises from such an interpretation. 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. 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. [Para 53][336-E-F; 337-D-E]

4.5. The fourth difficulty in accepting the line of approach of the High Court rests on constitutional principles. 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. ‘Probable number of vacancies’ 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 infraction of Articles 14 and 16 and must be avoided. 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. [Para 54][337-E; 338-B, E-G; 339-A-C]

4.6. Fifthly, there is another serious aspect which arises from the judgment of the High Court. 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 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. [Para 55][339-C; 340-D-H; 341-A-B]

5. The respondents have no vested right to appointment for the 2019 selections. They cannot claim any right, or even equity, on the ground that the selection for the subsequent year may be delayed. Vacancies for 2020 must be allocated to candidates who are duly selected in pursuance of the recruitment process for 2020. Candidates who have ranked lower in the 2019 selection and were unable to obtain appointments cannot appropriate the vacancies of a subsequent year to themselves. To allow such a claim would be an egregious legal and constitutional error. [Para 58][343-A-C]

Malik Mazhar Sultan (3) v. Uttar Pradesh Public Service Commission (2008) 17 SCC 703; Rakhi Ray v. High Court of Delhi (2010) 2 SCC 637 : [2010] 2 SCR 239; Prem Singh & Ors v. Haryana State Electricity Board & Ors (1996) 4 SCC 319 : [1996] 2 Suppl. SCR 401; Bedanga Talukdar v. Saifudaullah Khan & Ors (2011) 12 SCC 85 : [2011] 11 SCR 635; Hirandra Kumar v. High Court of Judicature at Allahabad, 2019 SCC Online SC 254; All India Judges’ Association v. Union of India (2002) 4 SCC 247 : [2002] 2 SCR 712; Subhash Chander Sharma v. State of Haryana (1984)

1 SLR 165 (P&H); Ashok Kumar Yadav v. State of Haryana (1985) 5 SCC 417 : [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 : [1993] 3 Suppl. SCR 134; Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat: 1994 Supp (2) SCC 591 : [1994] 3 SCR 983; Anurag Kumar Singh v. State of Uttarakhand (2016) 9 SCC 426; Rahul Dutta v. State of Bihar (2019) 5 SCC 158 : [2019]

3 SCR 1060; Virender S Hooda v. State of Haryana (1999) 3 SCC 696 and Virender Singh Hooda v. State of Haryana [2004] 5 Suppl. SCR 720 – referred to.

Black’s Law Dictionary – referred to.