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

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49Copy pinpoint49. Now while giving meaning and content to the provisions of G 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. H Moreover, as we have already explained, Rule 7(2) deals with tenure of

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the approved list while the determination of the probable number of vacancies falls within the ambit of Rule 7(1). Hence, in determining the probable number of vacancies likely to be filled up, the particular High Court has to take into account: (i) The existing number of vacancies; (ii) Anticipated vacancies during the year arising due to retirements and other exigencies of service including promotion, death and resignation; and (iii) Some candidates are to be included in the wait-list. The ambit of the probable number of vacancies in Rule 7(1) must be based on this assessment. In fact, as noted earlier, this was exactly what was done by the appellant.

50Copy pinpoint50. The submission which has been urged on behalf of the respondents, which found acceptance by the High Court was that since the tenure of the approved list is for a period of one year from the date of the approval of the Governor or the publication of a fresh list, whichever takes place earlier, the vacancies which have arisen between 7 May 2020 (the date of the approval of the Governor) and 6 May 2021 (the expiry of one year from the date of approval) must also be added in to form a part of the selection for 2019. There are significant problems in accepting this line of interpretation which has found acceptance by the E High Court.

51Copy pinpoint51. 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 F 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. G Nor does Rule 7(1) bring vacancies of a future year within the computation of probable vacancies.

52Copy pinpoint52. Secondly, adopting the interpretation which has been suggested on behalf of the respondents would lead to serious anomalies. As we have seen, a notification was issued by the appellant in the month of H

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A June 2020 for the 2020 recruitment. The consequence of accepting the arguments of the respondents would be that posts which have to be allocated for recruitment against the existing and anticipated vacancies for 2020 would have to be reduced by allocating them to recruitment year 2019. The appellant has expressly determined and notified the vacancies which have arisen for 2020. The respondents argued that though the original notification referred to a probable number of vacancies the corrigendum deleted the expression ‘probable’. This, in our view, is not a matter of moment since the essence of the controversy lies in interpreting the provisions of the Rules as they stand. If the respondents were right in their submission, this would require the appellant to progressively remove from the ambit of the vacancies which are notified for the subsequent recruitment year, the vacancies which are allocated to the previous year on the basis of a supposed interpretation of Rule 7(2). This would clearly be impermissible and bring uncertainty to the recruitment for subsequent years. It will cause serious prejudice to candidates who qualify in terms of eligibility during the recruitment process of 2020 by reducing the number of probable vacancies and adding them to the previous recruitment cycle.

53Copy pinpoint53. The third anomaly which arises from the interpretation, which has been suggested by the respondents and which has been accepted by the High Court, was noticed by the High Court itself in the course of its judgment. If Rule 7(2) were to be given overriding importance without reading it in juxtaposition with the determination of the probable number of vacancies under Rule 7(1), the issue is until what period of time would vacancies arising after the date of approval by the Governor have to be factored into account. Some of the petitioners before the High Court, as indeed some of them in the written submissions before this Court, indicated that the number of vacancies as existing on the date of the approval of the Governor should form the basis of making appointments. The High Court rejected these arguments in the following observations: “9. Immediately we have to notice that we cannot go mid-way to direct appointment to vacancies arising till the date of approval. We either decline the relief or grant it as permissible under the rules. The date of approval is only relevant to determine the validity period of the list, as per the rules. We cannot give the date of approval any significance other than that prescribed in the rules. Which if allowed would literally be a half baked cake, neither H

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good for consumption nor completely worthless to be thrown out. A We would not rest ourselves on such sticky premise of uncertainty.” The High Court was correct in comprehending that it could not accept a half-way measure merely because it suited the interest of some of the candidates who would be appointed if the vacancies which had arisen up to the date of approval were taken into account. Noticing this anomaly, the High Court by its impugned judgment went the entire extent by issuing the following directions: “38… We direct the appellant to prepare a select list from the approved merit list including those vacancies which arise as on today and those anticipated till 06.05.2021 or any other date on which the appellant expects the next list to be published.” In its conclusion, the High Court also observed: “We dismiss the Writ Appeals, directing the High Court to forward a select list in accordance with the rules 14 to 17 of Part II of the D KS&SSR, 1958 from the approved merit list.” The plain consequence of the decision of the High Court would be that vacancies which have arisen during 2020 would be allocated to

2019. This could only be done if the vacancies for 2020 were anticipated to arise during 2019, which is not the case. E

54Copy pinpoint54. The fourth difficulty in accepting the line of approach of the High Court rests on constitutional principles. Undoubtedly, the validity of Rule 7(2) was not in question before the High Court. Counsel for the respondents argued that it does not lie in the province of the appellant to raise a doubt about the validity of its own rules, more particularly Rule F 7(2). It is necessary to note that Mr V Giri, learned Senior Counsel appearing on behalf of the appellant did not suggest or argue that Rule 7(2) should be held to be invalid. The submission of learned Senior Counsel is that the expression “probable” denotes an addition/deduction which has to be made due to the imponderables of service such as death, G resignation and promotion. The submission of the appellant is that a literal interpretation of Rule 7(2), without reference to the constitutional requirement of not operating a select list beyond the notified vacancies, would render the Rule violative of Articles 14 and 16 and such an interpretation should be avoided. In other words, his submission was H

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A that a constitutional interdict cannot be overcome in the manner it has been suggested by the respondents and a harmonious interpretation of the judicial service rules in the light of the directions in Malik Mazhar Sultan (3) should have been resorted to by the High Court. We are in agreement with this line of submissions, based as it is on the precedent of this Court. It is a settled principle of service jurisprudence that when vacancies are notified for conducting a selection for appointments to public posts, the number of appointments cannot exceed the vacancies which are notified. The answer to this submission, which has been proffered by the respondents is that under Rule 7(1) a probable number of vacancies is required to be notified and since an exact number is not notified, there is no constitutional bar in exceeding the 37 probable vacancies that were notified in 2019. The difficulty in accepting the submission is simply this: it attributes to the expression “probable number of vacancies” a meaning which is inconsistent with basic principles of service jurisprudence, the requirement of observing the mandate of equality of opportunity in public employment under Articles 14 and 16 D and is contrary to the ordinary meaning of the expression. Black’s Law Dictionary22 defines the expression ‘probable’ as: “Probable’: likely to exist, be true, or happen” ‘Probable number of vacancies’, as we have seen, is based on computing the existing vacancies and the vacancies anticipated to occur during the year. It also accounts for the possibility of inclusion of some of the candidates that are in the wait-list. However, the expression ‘probable’ cannot be interpreted as a vague assessment of vacancies that isn’t founded in reason and can be altered without a statutorily prescribed cause. To allow the concept of probable number of vacancies in Rule 7(1) to trench upon future vacancies which will arise in a succeeding year would lead to a serious constitutional infraction. Candidates who become eligible for applying for recruitment during a succeeding year of recruitment would have a real constitutional grievance that vacancies which have arisen during a subsequent year during which G 22 11 th Edition (Thomson Reuters West, 2019). The definition of ‘Probable’ in the 4 th edition, Revision 6 (1971) of the Black’s Law Dictionary was: “Having the appearance of truth; having the character of probability; appearing to be founded in reason or experience…; having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt; Apparently true yet possibly false.”

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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. To reiterate, the submission of the appellant which we are inclined to accept is not that Rule 7(2) is invalid but that a harmonious interpretation of Rules 7(1) and (2) must be adopted that is consistent with the Article 142 directions in Malik Mazhar Sultan (3) to bring the rules in accord with the governing principles of constitutional jurisprudence in matters of public employment. C

55Copy pinpoint55. Fifthly, at this stage, we must also advert to another serious aspect which arises from the judgment of the High Court. The High Court noticed in the course of its analysis that the acceptance of the submission of the respondents would lead to the appellant, on its administrative side, having to carry out piece-meal training for candidates who are appointed to vacancies arising in the year after approval of the merit list. The approval of the Governor was received on 7 May 2020. If vacancies which arise between 7 May 2020 and 6 May 2021 are to be reckoned in making appointments for the 2019 process, the training of candidates who are appointed against the subsequent vacancies would take place piece-meal and in a sporadic manner after the initial batch of recruits has been sent on training. Upon receipt of the approval of the Governor, candidates to whom appointment orders were issued joined their training and are in fact in the midst of their training. The High Court without venturing a solution to this imbroglio came out with a suggestion in paragraph 29 of this judgment, which is extracted below: F “29. There could arise one problem insofar as the High Court having to carry out training, piece meal, of the recruits appointed to the vacancies arising in the one year after the approval of the merit list. This could be solved by selecting for training even persons whose vacancies have not arisen, in anticipation. When G appointments are made in June 2020 in accordance with Rue 7(2) it could only be regularly made to vacancies that actually arose till that date. The High Court then would be faced with the problem of appointing fresh recruits in the enabling year to arising vacancies who also would have to be given training for one year which may H

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A put the training process into jeopardy. We only observe that the High Court on its administrative side in consultation with the Government could device a procedure through which training could be commenced even for successful candidates, finding a place in the merit list, who could be appointed to the anticipated vacancies, which vacancies definitely would arise by the time their training is completed. This can especially be managed since the validity of the list go beyond one year from the date of approval of the merit list and the training can commence only after the approval of the merit list. The selection of recruits to anticipated vacancies for undergoing training could also be made subject to the vacancy arising and the new list coming into force with continuance in training on a stipend till a regular appointment is made to the vacancy. We do not intent these observations to be in the nature of a direction and are only our thoughts, expressed aloud.” The solution which the High Court has indicated is, as it clarified, not in the nature of a direction but “only our thoughts, expressed allowed”. The solution suggested by the High Court is that candidates may be selected and sent for training even against vacancies which have not arisen, in anticipation of vacancies arising in future. The High Court observed that when appointments were made in June 2020, they could only be regularly made to vacancies that actually arose until that date. E 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

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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.

56Copy pinpoint56. During the course of the submissions, reliance has been placed on behalf of the respondents on the decision of this Court in Virendra S Hooda v. State of Haryana23. This was a case where the Haryana C Public Service Commission issued an advertisement for recruitment to the Executive Branch of the Haryana Civil Service. The advertisement covered 12 posts, 7 of which were in the general category and 5 were reserved. A written examination was held following which the results were published. The appellants were in the list of candidates whose results were declared but did not place sufficiently high to be appointed to the Civil Service (Executive Branch). They were given alternate posts. The writ petitions filed by the appellants were dismissed by the High Court and when the matter reached this Court, they were granted liberty to file fresh writ petitions for getting appointments on the basis of two circulars of 1957 and 1972 which laid down the procedure to be adopted for selection against all notified additional vacancies which arise within six months from the recommendation of the names. The High Court rejected the claim again but this Court eventually took the view that when a policy was declared by the State as to the manner of filling up the post and the policy is declared in terms of the rules, the instructions not being contrary to the rules, the State ought to follow them. Now significantly, the administrative instructions which were referred to were subsequently repealed by legislation with retrospective effect. The validity of the law was upheld by this Court in Virender Singh Hooda v. State of Haryana²⁴, though appointments made already in pursuance of the directions of this Court were left undisturbed. The first decision in G Virender Singh Hooda would have to be read in the context of the facts of the case. Significantly, this Court did not have occasion to consider

23 (1999) 3 SCC 696 24 (2004) 12 SCC 588 H

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A the earlier decision including the principle that appointments cannot be made, consistent with Articles 14 and 16, in excess of notified vacancies. This principle was reiterated in Prem Singh (supra) which was prior to the decision in Virender Singh. Be that as it may, we are of the view that in the above facts the decision in Virender Singh Hooda will not assist the respondents and would have to be confined to the peculiar B circumstances in that case.

57Copy pinpoint57. The respondents urged, on the basis of Annexures A-1 to A- 3 produced before the High Court along with the statement filed on 18 August 2020, and referred to in the appendix to the impugned judgment, that more than 37 vacancies actually existed as on 31 December 2019 C and therefore the select list could be operated for a larger number of vacancies. We are unable to subscribe to this submission. The respondents participated in the selection process on the basis of 37 probable vacancies. Moreover, it has been submitted on behalf of the appellants that, Annexure A-2 appended to the submissions would indicate that the total number of vacancies as on 31 December 2019 were shown to be 43, which included 37 regular vacancies and 8 NCA vacancies. Out of the 37 regular vacancies only 32 could be included in the select list for the year 2019 because as against 5 vacancies candidates were not available against the reserved turn. Those five vacancies have been treated as NCA vacancies for 2020 and have been included in the list of vacancies for the succeeding year. The 37 regular vacancies and 8 NCA vacancies were notified for the year 2019, in accordance with the break up provided in Malik Mazhar Sultan (3). It has been stated that 45 vacancies notified for selection year 2019 included 4 vacancies under the 10 per cent addition that had to be made for every year. However, F only two of the four vacancies had actually arisen and hence the figure of 43. On this basis, it has been submitted that there is no discrepancy in the figures which were given in the statement filed before the High Court and the statement filed on additional affidavit before this Court.

58Copy pinpoint58. Finally, it has been urged on behalf of the respondents that the G recruitment process for the year 2020 has been delayed as a result of the onset of the Covid-19 pandemic. A recruitment notification was issued in the month of June 2020. It has been submitted that the actual process of selection would take about one year following which candidates would have to be sent on training. Hence it has been submitted that candidates for recruitment year 2020 would be in a position to actually commence H

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judicial duties only in early 2023. Having come to the conclusion that the A judgment of the High Court is erroneous, we are of the view that it would be impermissible to grant relief to the respondents purely on this basis. The respondents have no vested right to appointment for the 2019 selections. They cannot claim any right, or even equity, on the ground that the selection for the subsequent year may be delayed. Vacancies B 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. C

59Copy pinpoint59. For the reasons which we have indicated, we are of the view that the judgment of the High Court cannot be sustained. We accordingly allow the appeals and set aside the impugned judgment and order of the Division Bench of the High Court of Kerala dated 26 August 2020. The writ petitions filed by the respondents before the High Court shall stand D dismissed. There shall be no order as to costs.

60Copy pinpoint60. Pending applications, if any, stand disposed of.

Devika Gujral Appeals allowed. E