# HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC

- **Citation:** [2021] 1 S.C.R. 289
- **Court:** Supreme Court of India
- **Decided:** 2021-01-11
- **Case number:** Civil Appeal Nos. 3974-3975 of 2020
- **Bench:** Dr. Dhananjaya Y Chandrachud, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/high-court-of-kerala-v-reshma-a-others-etc-34659
- **Pages:** 55

## Headnote

Service Law: Selection - Vacancies - High Court held that
appointments to the post of Munsiff-Magistrate can be beyond the
number of probable number of vacancies advertised in the
notification inviting applications - High Court held, on a literal
reading of r.7(2) of the Kerala Judicial Service Rules, 1991 (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 - Consequence of the decision was 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 - Challenge to - Held: A harmonious interpretation of r.7(1)
and (2) must be adopted that is consistent with the Art.142 directions
in Malik Mazhar Sultan (3) case to bring the rules in accord with
the governing principles of constitutional jurisprudence in matters
of public employment - r.7(1) which refers to "notifying the probable
number of vacancies likely to be filled up" 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) case - 'Probable number of vacancies'
is based on computing the existing vacancies and the vacancies
anticipated to occur during the year - To allow the concept of
probable number of vacancies in r.7(1) to trench upon future
vacancies which will arise in a succeeding year would lead to a
serious constitutional infraction - 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
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[2021] 1 S.C.R.
appropriate the vacancies of a subsequent year to themselves - To
allow such a claim would be an egregious legal and constitutional
error - Kerala Judicial Service Rules, 1991 (as amended in 2019)
- r.7(1) and (2) - Interpretation of Statutes - Harmonious
construction - Judicial Service.
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
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HIGH COURT OF KE

## Text

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 [2021] 1 S.C.R. 289
289
HIGH COURT OF KERALA
v.
RESHMA A. & OTHERS ETC.
(Civil Appeal Nos. 3974-3975 of 2020)
JANUARY 11, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Service Law: Selection - Vacancies - High Court held that
appointments to the post of Munsiff-Magistrate can be beyond the
number of probable number of vacancies advertised in the
notification inviting applications - High Court held, on a literal
reading of r.7(2) of the Kerala Judicial Service Rules, 1991 (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 - Consequence of the decision was 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 - Challenge to - Held: A harmonious interpretation of r.7(1)
and (2) must be adopted that is consistent with the Art.142 directions
in Malik Mazhar Sultan (3) case to bring the rules in accord with
the governing principles of constitutional jurisprudence in matters
of public employment - r.7(1) which refers to "notifying the probable
number of vacancies likely to be filled up" 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) case - 'Probable number of vacancies'
is based on computing the existing vacancies and the vacancies
anticipated to occur during the year - To allow the concept of
probable number of vacancies in r.7(1) to trench upon future
vacancies which will arise in a succeeding year would lead to a
serious constitutional infraction - 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
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[2021] 1 S.C.R.
appropriate the vacancies of a subsequent year to themselves - To
allow such a claim would be an egregious legal and constitutional
error - Kerala Judicial Service Rules, 1991 (as amended in 2019)
- r.7(1) and (2) - Interpretation of Statutes - Harmonious
construction - Judicial Service.
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
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HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC.
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
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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,
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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]
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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
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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
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC.
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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
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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.
Case Law Reference
(2008) 17 SCC 703
referred to
Para 5
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[2010] 2 SCR 239
referred to
Para 10
[1996] 2 Suppl. SCR 401
referred to
Para 10
[2011] 11 SCR 635
referred to
Para 10
(1999) 3 SCC 696
referred to
Para 12
[2002] 2 SCR 712
referred to
Para 16
[1985] Supp (1) SCR 657
referred to
Para 39
1993 Supp (4) SCC 377
referred to
Para 39
[1993] 3 Suppl.SCR 134
referred to
Para 39
[1994] 3 SCR 983
referred to
Para 39
(2016) 9 SCC 426
referred to
Para 42
[2019] 3 SCR 1060
referred to
Para 43
[2004] 5 Suppl. SCR 720
referred to
Para 56
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 39743975 Of 2020.
From the Judgment and Order dated 26.08.2020 of the High Court
of Kerala at Ernakulam in W.A. No. 994 of 2020 & W.A. No. 998 of
2020.
V. Giri, Paramjit Singh Patwalia, V. Chitambaresh, Sr. Advs., T.
G. Narayanan Nair, Ms. Ankita Gupta, Karthik S.D., John Mathew, Ms.
Bina Madhavan, M/s. Lawyer S Knit & Co., Mohammed Sadique T.A.,
Ms. Anzu. K. Varkey, Govind Venugopal, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A.
Background
B.
Submissions of the parties
C.
Kerala Rules, 1991
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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 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 MunsiffMagistrate in the Kerala Judicial Service, against regular vacancies and
against a carry-forward called 'No Candidates Available (NCA)'. Thirtyseven "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:
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)
3 "Kerala Rules 1991"
4 "Appellant"
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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 MunsiffMagistrate, 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 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
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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 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 Sultan (3) as this Court had noticed that
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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 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 1December of every
recruitment year and the last date of joining shall be 2January
of the following year. Thus, for every recruitment year the
vacancies to be considered are as on 1December to enable
the appointees to join on 2 January of the following year;
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC.
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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 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:
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i
About fifty vacancies subsist after the appointments were
issued on 7 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
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;
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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 19917came 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 "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
7 "the Kerala Rules 1991"
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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 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
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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 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.