Ansu Sara Mathew vs State Of Kerala
2024 Latest Caselaw 11431 Ker

Kerala High Court

Ansu Sara Mathew vs State Of Kerala on 23 April, 2024

Author: V.G.Arun

Bench: V.G.Arun

W.P.(C) Nos.7163 & 10913 of 2024        1




                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                      THE HONOURABLE MR.JUSTICE V.G.ARUN

       TUESDAY, THE 23RD DAY OF APRIL       2024 / 3RD VAISAKHA, 1946

                              WP(C) NO. 7163 OF 2024

PETITIONER:

               ANSU SARA MATHEW
               AGED 28 YEARS
               D/O. MATHEW.Y., BABY VILLA, ARUKALICKAL WEST, VAYALA
               P.O., PARAKODE, PATHANAMTHITTA DISTRICT,, PIN - 691554

               BY ADVS.
               M.A.VAHEEDA BABU
               SABU THOZHUPPADAN
               BABU KARUKAPADATH
               P.U.VINOD KUMAR
               ARYA RAGHUNATH
               KARUKAPADATH WAZIM BABU
               P.LAKSHMI
               AYSHA E.M.
               SHIFANA KAISE
               DENNIS BIJU


RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME (C)
               DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,, PIN -
               695001

      2        THE HIGH COURT OF KERALA,
               REPRESENTED BY ITS REGISTRAR (GENERAL), HIGH COURT
               BUILDING, ERNAKULAM, PIN - 682031

               BY ADVS.
               ADVOCATE GENERAL OFFICE KERALA
               Amith Krishnan H
               SHRI.N.MANOJ KUMAR, STATE ATTORNEY()
               K.R.RANJITH, GOVERNMENT PLEADER WITH STATE ATTORNEY()
               B.G.HARINDRANATH (SR.)(K/378/1984)
 W.P.(C) Nos.7163 & 10913 of 2024    2

               GOWRI DEV(K/003380/2023)
               P.DEVIKRISHNA(k/002502/2023)


OTHER PRESENT:

               ADV.P.C.SASIDHARAN FOR HIGH COURT IN WPC 10913/24

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.04.2024, ALONG WITH WP(C).10913/2024, THE COURT ON 23/04/2024
DELIVERED THE FOLLOWING:
 W.P.(C) Nos.7163 & 10913 of 2024        3




                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                      THE HONOURABLE MR.JUSTICE V.G.ARUN

       TUESDAY, THE 23RD DAY OF APRIL       2024 / 3RD VAISAKHA, 1946

                             WP(C) NO. 10913 OF 2024

PETITIONER:

               RISHNA RAHIM
               AGED 35 YEARS
               W/O MITHUN, DARUL ILYAS, DILKUSH APARTMENTS, RAJAPPAN
               JUNCTION, BAZAR P.O., ALAPPUZHA, PIN - 688012

               BY ADVS.
               M.A.VAHEEDA BABU
               BABU KARUKAPADATH
               P.U.VINOD KUMAR
               ARYA RAGHUNATH
               KARUKAPADATH WAZIM BABU
               P.LAKSHMI
               AYSHA E.M.
               SHIFANA KAISE
               DENNIS BIJU


RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME (C)
               DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,, PIN -
               695001

      2        THE HIGH COURT OF KERALA
               REPRESENTED BY ITS REGISTRAR (GENERAL), HIGH COURT
               BUILDING, ERNAKULAM, PIN - 682031

               BY ADVS.
               ADVOCATE GENERAL OFFICE KERALA
               P.C SASIDHARAN
               SHRI.N.MANOJ KUMAR, STATE ATTORNEY()
               K.R.RANJITH, GOVERNMENT PLEADER WITH STATE ATTORNEY()


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
 W.P.(C) Nos.7163 & 10913 of 2024   4

11.04.2024, ALONG WITH WP(C).7163/2024 AND CONNECTED CASES, THE
COURT ON 23/04/2024 DELIVERED THE FOLLOWING:
 W.P.(C) Nos.7163 & 10913 of 2024             5




                                       V.G.ARUN J.

                                   -----------------------

                       WP(C).Nos.7163 & 10913 of 2024

                              ------------------------

                      Dated this the 23rd day of April 2024

                                       JUDGMENT

The petitioners are aggrieved by the non-inclusion of their

names in select list of candidates and consequential denial of

appointment as Civil Judge (Junior Division) in the Kerala Judicial

Service. The essential facts, with reference to the documents in

W.P.(C)No.7163 of 2024, are as under;

The High Court of Kerala issued Ext. P2 notification dated

19.01.2023, inviting applications from qualified candidates for

appointment to the post of Munsiff - Magistrate in the Kerala

Judicial Service against 13 NCA and 56 regular vacancies. The

petitioners submitted applications seeking appointment to the

regular vacancies notified. Based on their performance in the

written examinations and viva voce, the petitioners' names were

included in Ext.P3 merit list dated 15/12/2023. The petitioner in

W.P.(C) No.7163 of 2024 was included at serial/rank No.27, and the

petitioner in W.P.(C) No.10913 of 2024 at serial/rank No. 64, in the

merit list of candidates to regular vacancies. According to the

petitioners, based on the rank in the merit list, their names were

included at serial Nos.40 and 48 in the select list of candidates

forwarded to the Government, for the Governor's approval. The

petitioners allege that, after forwarding a list containing the names

of 48 selected candidates, the High Court recalled that list and

forwarded another list of 39 candidates. The latter list was

approved by the Governor and Ext.P4 notification, dated

07/02/2024, issued by the Government, appointing those 39

candidates as Civil Judge (Junior Division) Trainees to the General

Vacancies of the selection year 2023.

2. Heard Advocate M.A.Vaheeda Babu, learned Counsel for

the petitioners, Senior Advocate B.G.Hareendranath and Advocate

P.C.Sasidharan for the High Court of Kerala and Special

Government Pleader, Adv.K.R.Ranjith, for the State.

3. Learned Counsel for the petitioners contended that, having

notified 56 regular vacancies and having forwarded a select list of

48 candidates, the High Court could not have reduced the number

of selected candidates to 39. The illegal reduction and recasting of

select list has resulted in the petitioners' being denied the

appointment legitimately due to them. Relying on Ext.P7 affidavit

filed by the High Court of Kerala before the Supreme Court of India

in Civil Appeal No.1867 of 2006 (Malik Mazhar Sultan & Anr. v.

U.P. Public Service Commission & Ors), it is submitted that,

admittedly 21 temporary Civil Judges (Junior Division) were

appointed to reduce the impact of vacancies of regular officers in

the cadre and as on 31/12/2023, the total vacancies in the cadre of

Civil Judge (Junior Division) was 58, out of which no candidates

were available for 8 vacancies (NCA). It is hence contended that, if

the vacancies notified and to which candidates were available were

filled up, the petitioners would have been appointed. Instead of

doing that, the number of selected candidates was reduced in a

most arbitrary manner.

4. Learned Counsel appearing for the High Court referred to

Ext.R2(a) to demonstrate the manner in which the 69 vacancies,

including NCA vacancies, as on 31/12/2023 was computed. It is

submitted that, for the purpose of computing the 56 regular

vacancies, all existing vacancies and anticipated vacancies that may

arise due to retirement, promotion and creation of new courts in

the year 2023 were considered. Over and above this, additional

10% vacancies were also notified, anticipating elevation of District

Judges to the High Court. After completion of the selection process

and publication of the merit list, a select list was drawn up as per

Rules 5(3) and 7 of the Kerala Judicial Service Rules, 1991 and in

terms of Rules 14 to 17 of the Kerala Service and Subordinate

Service Rules, 1958. Thereafter, on re-assessment of the available

vacancies, shortage of 11 anticipatory vacancies was noticed.

According to the learned Counsel, the shortage of 11 vacancies had

occurred due to various unforeseen circumstances. In view of the

shortage of 11 posts, it became imperative to recast the select list,

failing which an awkward situation, of no vacancies being available

to accommodate 11 of the Civil Judges (Junior Division) trainees,

would have arisen. It is not possible to overcome this shortage by

accommodating the 11 officers in future vacancies also, in view of

the clear-cut directions issued by the Supreme Court in Malik

Mazhar Sultan (supra) and the observations in High Court of

Kerala v. Reshma A. & Others (ILR 2021 (1) Kerala 335). It

is contended that, since recasting of the select list was done for

valid and bona fide reasons, this Court cannot interfere with the

selection process on the premise that computation was not done

with mathematical precision. Moreover, mere inclusion of their

names in the merit list does not vest the petitioners with any

indefeasible right to appointment. In support of this contention,

reliance is placed on the decisions of the Apex Court in

Shankarsan Dash v. Union of India (AIR 1991 SC 1612) and

State of Haryana v. Subhash Chander Marwaha & Others

[(1974) 1 SCR 165].

5. From the arguments advanced, it has come out that a

select list of 50 candidates was initially forwarded to the

Government. Thereafter, the list was recalled and another list of 39

candidates forwarded. Hence, the only issue arising for

consideration is whether the High Court could have recalled that list

and reduced the number of selected candidates. The explanation

for such reduction and recasting available at paragraph 8 of the

counter affidavit extracted below for convenience, assumes

importance;

"A. The then Chairman and Managing Director of KSEB

Ltd. vide letter dated 03/06/2022, requested that

Officers need not be deputed to the post of 'Legal

Advisor and DEO, KSEB' till further intimation, in view of

the corporatization of the Board and framing of new

Rules. Thus, the promotee cadre post, if filled, that

would have arisen at the lowest cadre, did not

materialize. A true copy of the letter from KSEB is

produced herewith and marked as Exhibit R2(b).

B. The High Court on its administrative side re-fixed the

cadre strength in the cadre of District & Sessions Judge

as 184 from 169 vide order dated 19/05/2023, which

happened well after the notification of the vacancies.

Consequently, the 25% quota for direct recruits in the

said cadre went up by 4 posts from 42 to 46.

Resultantly, there occurred a reduction of 4 promotion

posts that would ultimately be available for 4 fresh Civil

Judges (Junior Division). A true copy of the order dated

19/05/2023 is produced herewith and marked as Exhibit

R2(c).

C. 10% of the vacancies were additionally notified in

anticipation of 5 vacancies that would have arisen due

to elevation. However, during 2023 only 3 officers in the

cadre of District & Sessions Judge, were elevated. Two

elevations did not occur as anticipated. Hence, there

occurred a reduction of 2 consequent vacancies in the

lowest cadre.

D. Out of 13 vacancies expected consequent to creation

of 14 new Courts, 4 viz. Special Court (Additional

District and Sessions Court) for the trial of Puttingal

Devi Temple fireworks mishap case, an Arbitration

Court as well as 2 more FTSCS did not materialize

during 2023, though the Government had issued orders

establishing the said Courts. The said Courts did not

commence functioning so as to create vacancies as

anticipated."

From the explanation it evident that, recasting of the select list was

necessitated due to imponderables. Although learned Counsel for

the petitioners would contend that some of the situations pointed

out in the explanation had existed even as on the date on which

Ext.P2 notification was published, that is no reason to hold the

recasting itself to be bad.

6. In this context, it may be worthwhile to notice that, in the

decision dated 04/01/2007 in Malik Mazhar (supra), the Supreme

Court had directed the High Courts to calculate the number of

vacancies to be notified for the annual selection by reckoning the

following factors;

(i) Existing vacancies.

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

retirement.

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

otherwise "say 10 percent of the number of posts".

As the third stipulation, of notifying 10% of the number of posts

towards future vacancies which may arise due to promotion, death

or otherwise had resulted in a large number of vacancies being

notified, the Supreme Court in its decision dated 24/03/2009 in

Malik Mazhar (supra), modified the direction as under;

"3. In supersession of the order passed

by this Court on 4-1-2007, this Court directs

that in future the High Courts/PSCs shall

modify the existing number of vacancies plus

the anticipated vacancies for the next one

year and some candidates also be included in

the wait-list. To this extent earlier order is

modified".

7. Taking into consideration the above modification, the

Supreme Court in Reshma (supra) directed that the following three

factors should be borne in mind while computing the vacancies to be

notified;

i) The existing number of vacancies,

ii) the anticipated vacancies for the next year, and

iii) some candidates are to be included in the wait-list.

8. Although there is some merit in the contention that the

uncertainty in the number of regular vacancies notified could have

been avoided, if the computation was made on the basis of the

factors mentioned in Reshma (supra), instead of including the 10

percent towards future vacancies, that, by itself, is no reason to

interfere with the selection process, as the select list was recast for

valid and sustainable reasons. Further, inclusion in the merit list, or

a wrongly cast select list, does not confer the petitioners with an

indefeasible right to appointment. Being so, no interference in

exercise of the extraordinary jurisdiction under Article 226 is

warranted.

Hence, the writ petitions are dismissed.

Sd/-

V.G.ARUN

JUDGE dpk

APPENDIX OF WP(C) 10913/2024

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION DATED 19/01/2023 CALLING FOR APPLICATIONS FROM QUALIFIED CANDIDATES FOR THE KERALA JUDICIAL SERVICE EXAMINATION-2023 FOR APPOINTMENT TO THE POST OF MUNSIFF-MAGISTRATE IN THE KERALA JUDICIAL SERVICE AGAINST 13 NCA AND 56 REGULAR VACANCIES (69 TOTAL VACANCIES)

Exhibit P2 A TRUE COPY OF THE OF THE NOTICE DATED 15/12/2023 ISSUED BY THE 2ND RESPONDENT, PUBLISHING THE MERIT LIST OF CANDIDATES FOR DIRECT RECRUITMENT INCLUDING TOTAL 106 CANDIDATES WHO HAD QUALIFIED IN THE KERALA JUDICIAL SERVICE EXAMINATION, 2023 FOR APPOINTMENT AS MUNSIFFS-MAGISTRATES WHEREIN THE

Exhibit P3 A TRUE COPY OF THE GAZETTE NOTIFICATION DATED 07/02/2024 OF THE 1ST RESPONDENT, APPOINTING 39 CANDIDATES AS CIVIL JUDGE (JUNIOR DIVISION) TRAINEES IN THE KERALA JUDICIAL SERVICE BY DIRECT RECRUITMENT FOR THE GENERAL VACANCIES OF THE SELECTION FOR THE YEAR 2023 (REC NO.3/2023), ON RECOMMENDATION BY THE 2ND RESPONDENT

Exhibit P4 A TRUE COPY OF THE GAZETTE NOTIFICATION DATED 07/02/2024 OF THE 1ST RESPONDENT, APPOINTING 3 CANDIDATES AS CIVIL JUDGE (JUNIOR DIVISION) TRAINEES IN THE KERALA JUDICIAL SERVICE BY DIRECT RECRUITMENT FROM NCA SELECTION (REC NO.1/2023), ON RECOMMENDATION BY THE 2ND RESPONDENT

Exhibit P5 A TRUE COPY OF THE GAZETTE NOTIFICATION DATED 07/02/2024 OF THE 1ST RESPONDENT, APPOINTING 8 CANDIDATES AS CIVIL JUDGE (JUNIOR DIVISION) TRAINEES IN THE KERALA JUDICIAL SERVICE BY DIRECT RECRUITMENT FROM NCA SELECTION (REC NO.2/2023), ON RECOMMENDATION BY THE 2ND RESPONDENT,

Exhibit P6 A TRUE COPY OF THE AFFIDAVIT DATED 16/02/2024 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE HON'BLE SUPREME COURT OF INDIA IN CIVIL APPEAL NO.1867/2006,

Exhibit P7 A TRUE COPY OF THE DIVISION BENCH JUDGMENT DATED 02/04/2019 IN W.A.NO.2242/2018, OF THIS HON'BLE COURT,

APPENDIX OF WP(C) 7163/2024

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE OF THE NOTICE DATED 20/02/2020 ISSUED BY THE 2ND RESPONDENT PUBLISHING THE MERIT LIST OF CANDIDATES FOR DIRECT RECRUITMENT WHO HAD QUALIFIED IN THE KERALA JUDICIAL SERVICE EXAMINATION, 2019 FOR APPOINTMENT AS MUNSIFF- MAGISTRATE WHEREIN THE PETITIONER WAS INCLUDED AS SERIAL NO. 50,

Exhibit P2 A TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION DATED 19/01/2023 CALLING FOR APPLICATIONS FROM QUALIFIED CANDIDATES FOR THE KERALA JUDICIAL SERVICE EXAMINATION-2023 FOR APPOINTMENT TO THE POST OF MUNSIFF-MAGISTRATE IN THE KERALA JUDICIAL SERVICE AGAINST 13 NCA AND 56 REGULAR VACANCIES (69 TOTAL VACANCIES)

Exhibit P3 A TRUE COPY OF THE OF THE NOTICE DATED 15/12/2023 ISSUED BY THE 2ND RESPONDENT, PUBLISHING THE MERIT LIST OF CANDIDATES FOR DIRECT RECRUITMENT INCLUDING TOTAL 106 CANDIDATES WHO HAD QUALIFIED IN THE KERALA JUDICIAL SERVICE EXAMINATION, 2023 FOE APPOINTMENT AS MUNSIFFS-MAGISTRATES WHEREIN THE PETITIONER WAS INCLUDED AS SERIAL/RANK NO. 27,

Exhibit P4 A TRUE COPY OF THE GAZETTE NOTIFICATION DATED 07/02/2024 OF THE 1ST RESPONDENT, APPOINTING 39 CANDIDATES AS CIVIL JUDGE (JUNIOR DIVISION) TRAINEES IN THE KERALA JUDICIAL SERVICE BY DIRECT RECRUITMENT FOR THE GENERAL VACANCIES OF THE SELECTION FOR THE YEAR 2023 (REC NO.3/2023), ON RECOMMENDATION BY THE 2ND RESPONDENT

Exhibit P5 A TRUE COPY OF THE GAZETTE NOTIFICATION DATED 07/02/2024 OF THE 1ST RESPONDENT, APPOINTING 3 CANDIDATES AS CIVIL JUDGE (JUNIOR DIVISION) TRAINEES IN THE KERALA JUDICIAL SERVICE BY DIRECT RECRUITMENT FROM NCA SELECTION (REC NO.1/2023),ON RECOMMENDATION BY THE 2ND RESPONDENT

Exhibit P6 A TRUE COPY OF THE GAZETTE NOTIFICATION DATED 07/02/2024 OF THE 1ST RESPONDENT, APPOINTING 8 CANDIDATES AS CIVIL JUDGE (JUNIOR DIVISION) TRAINEES IN THE KERALA JUDICIAL SERVICE BY DIRECT RECRUITMENT FROM NCA SELECTION (REC NO.2/2023), ON RECOMMENDATION BY THE 2ND RESPONDENT,

Exhibit P7 A TRUE COPY OF THE AFFIDAVIT DATED 16/02/2024 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE HON'BLE SUPREME COURT OF INDIA IN CIVIL APPEAL NO.1867/2006

Exhibit P8 A TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION DATED 31/01/2024 CALLING FOR APPLICATIONS FROM QUALIFIED CANDIDATES FOR THE KERALA JUDICIAL SERVICE EXAMINATION-2024,

Exhibit P9 A TRUE COPY OF THE DIVISION BENCH JUDGMENT DATED 02/04/2019 IN W.A.NO.2242/2018, OF THIS HON'BLE COURT,

RESPONDENT EXHIBITS

Exhibit A true copy of the detailed chart in relation t R2(a) computation of vacancies for regular selection is produced herewith and marked as Exhibit R2(a)

Exhibit A true copy of the letter dated 03/06/2022 from R2(b) KSEB is produced herewith and marked as Exhibit R2(b)

Exhibit A true copy of the order dated 19/05/2023 is R2(c) produced herewith and marked as Exhibit R2(c).