Kerala High Court
Bindu B.Kumar vs Guruvayur Devaswom on 5 September, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
WA NO. 275 OF 2022
AGAINST THE JUDGMENT DATED 05.01.2021 IN WP(C)
NO.16927 OF 2020 OF THE HIGH COURT OF KERALA
APPELLANTS/WRIT PETITIONERS:
1 BINDU B.KUMAR,
AGED 31 YEARS
W/O.SAJI O.S., RESIDING AT OTTUPARAKKAL
HOUSE,THONNURKKARA P.O.,CHELAKKARA,
THRISSUR DISTRICT-680 586.
2 SOUMYA P.,
AGED 30 YEARS, W/O.ANOOP V.,
RESIDING AT KAITHAKKATT HOUSE, KOTTAPPADI,
GURUVAYUR,THRISSUR DISTRICT-680 505.
BY ADVS.
M.R.ANISON
V.BHARGAVI (PANANGAD)
P.A.RINUSA
RESPONDENTS/RESPONDENTS:
1 GURUVAYUR DEVASWOM,
GURUVAYUR,THRISSUR DISTRICT-680 101,
REPRESENTED BY ITS ADMINISTRATOR.
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W.A. No. 275 of 2022 :2:
2 GURUVAYUR DEVASWOM MANAGING COMMITTEE,
REPRESENTED BY ITS CHAIRMAN,
GURUVAYUR,THRISSUR DISTRICT-680 101.
3 THE MANAGER,
SREEKRISHNA HIGHER SECONDARY SCHOOL,
GURUVAYUR,(ADMINISTRATOR,GURUVAYUR DEVASWOM),
THRISSUR DISTRICT-690 101.
4 HEADMISTRESS,
SREEKRISHNA HIGHER SECONDARY SCHOOL,
GURUVAYUR,THRISSUR DISTRICT-680 101.
BY ADV SHRI.T.K.VIPINDAS, SC, GURUVAYUR DEVASWOM BOARD
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
05.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.A. No. 275 of 2022 :3:
"CR"
JUDGMENT
Raja Vijayaraghavan, J.
This appeal has been placed before the Full Bench following a reference
made by a Division Bench of this Court. Before addressing the specific facts of
the case, it is important to highlight the key questions that arise.
a) Can the authorities that initiate processes for public
employment legitimately fill more vacancies than initially
advertised? If so, does this not constitute a violation of
Articles 14 and 16(1) of the Indian Constitution,
effectively denying the rights of those who did not apply?
Furthermore, does this not unfairly disadvantage
individuals who became eligible after the application
deadline but were unable to apply because the vacancies
were not advertised for them?
b) Does a candidate on a waiting list possess the right to be
appointed to vacancies that were not notified or available
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when the original select list was prepared? Can a waiting
list be utilized as a reservoir to fill vacancies that arise
after the advertisement is issued, thereby allowing
candidates from the list to be selected as needed?
c) Under what circumstances can the rule against recruiting
candidates beyond the notified vacancies be relaxed? If
such relaxation is to be considered, what are the critical
factors that must be taken into account?
These issues strike at the very heart of the principles of fairness, equality,
and the rule of law in the domain of public employment.
2. Now to the brief facts.
a) The Guruvayur Devaswom runs a High School comprising an Upper
Primary Section. The Administrator of the Devaswom is the
Manager of the School. Two vacancies of Upper Primary School
Teachers arose in the school on 18.6.2018 and 19.7.2019
respectively. Steps were taken by the Managing Committee of the
Devaswom to fill up the said vacancies by issuing Ext.P1 notification
on 16.10.2019. Ext.P2 select list was accepted by the Managing
Committee on 31.12.2019 as per Ext.P3 resolution for filling up the
notified vacancies alone. Pursuant to the said decision, the
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candidates ranked 1 and 2 in the select list were appointed against
the notified vacancies.
b) While so, on 14.12.2019, the Headmistress of the School issued
Ext.R2(a) letter requesting the Administrator to keep the select list
in operation so as to fill up the future vacancies from the said list
with a view to ensure that there is no disruption of classes for want
of teachers. Based on the above request, the Managing Committee
passed Ext.P4 resolution on 16.1.2020 deciding to extend the life of
Ext.P2 select list by one year and to make appointments from the
said list against future vacancies as well. Later, on 03.06.2020, the
Headmistress of the school reported to the Manager that a vacancy
arose in the Upper Primary Section of the school on account of the
retirement of a teacher. It was also pointed out that three teachers
in the Upper Primary Section are entitled to be promoted to the
Higher Sections of the School and if the said promotions are
effected at the appropriate time, four teachers may have to be
appointed in the Upper Primary Section. Ext.P5 report was
submitted by the Headmistress stating these aspects. The report
was accepted and the Manager issued Exhibit P6 order appointing
the candidates who were ranked 3 to 5 in Ext.P2 select list.
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c) Even before the selected candidates joined duty, the Managing
Committee by Ext.P10 resolution dated 15.6.2020, resolved to
revoke their appointment as according to the Committee, the
appointments of the candidates in excess of the notified vacancies
were made without their knowledge and permission. It was also
mentioned that when appointments were made, there was only one
vacancy as steps were not taken to effect the promotion of the
existing teachers to the Higher Sections of the school. Pursuant to
Ext.P10 resolution, Ext.P9 consequential order was issued by the
Manager revoking the appointment.
3. Separate writ petitions were filed before the learned Single Judge
challenging the cancellation of appointments consequent to Ext.P9 order.
The learned Single Judge, after evaluating the contentions advanced by
both sides, took note of the fact that the notification was issued for filling
up two vacancies of UPSA. The ranked list was prepared pursuant to the
notification for filling up the notified vacancies alone. The learned Single
Judge also noted that a decision had already been taken as early as on
31.12.2019 to the effect that the ranked list would be operated only for
the purpose of filling up the notified vacancy. On its basis, it was held
that with the appointment of two persons to the post of UPSA, the list
expired. The decision taken thereafter to extend the period of the list
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was held to be not proper and it was further held that the appointment of
the teachers on the basis of the extension was without considering the
factual aspect of the matter. It was conclusively held that the act of the
respondents in having issued appointment orders from a ranked list that
had already expired by extending the list was thoroughly improper. By
holding so, the writ petitions were dismissed upholding the order of
revocation.
4. Challenging the above judgment, Smt. Reema R., the petitioner in W.P.(C)
No. 16197/2021, preferred W.A. No.488 of 2021. A Division Bench of this
Court, relying on the observations made by the Apex Court in Rakhi Ray
and Others v. High Court of Delhi and Others1, came to the
conclusion that the vacancy in respect of Smt. Reema had arisen in the
same academic year as the filling up of the notified vacancies. It was
further held that Ext.P10 revocation order related only to the
appointments made in expectation of vacancies that were to arise in the
subsequent academic year 2020-2021 and not to the vacancy pertaining
to the very same academic year as the notified vacancies. It was held
that the nature of vacancy to which Smt. Reema was appointed was
different and distinct from that to which the other appointees were
appointed and it was also prior in time to the expected vacancies. It was
[(2010) 2 SCC 637]
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held that the differential treatment accorded by the Devaswom in the
matter of filling up the vacancies cannot be seen as discriminatory or
prejudicial in any manner. The Division Bench allowed the appeal and
quashed the order impugned to the extent it pertained to Smt. Reema.
She was held entitled to all consequential benefits flowing from the order
of appointment.
5. After the judgment in W.A.No.488 of 2021 was rendered on 07.07.2021,
the appellants approached this Court and have preferred the instant
appeal on 29.9.2021. Their contention is that Smt.Reema and the
appellants are similarly placed and therefore, they are entitled to the
benefit of the judgment in W.A.No. 488 of 2021.
6. Their Lordships of the Division Bench took note of the aforesaid
contention and were of the view that in view of the law laid down by the
Apex Court in Union of India and Ors. v. Ishwar Singh Khatri and
Ors.2, Gujarat State Dy. Executive Engineers' Association v. State
of Gujarat and Ors.3, Asok Kumar and Ors. v. Chairman, Banking
Service Recruitment Board and Ors.4, Prem Singh and Ors. v.
Haryana State Electricity Board and Ors.5 and Rakhi Ray (supra),
[(1992) Supp. 3 SCC 84]
[1994 Supp. 2 SCC 591]
[(1996) 1 SCC 283]
[(1996) 4 SCC 319]
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recruitment of candidates in excess of notified vacancies is a denial and
deprivation of the rights guaranteed under Article 14 r/w. Article 16(1) of
the Constitution of India to persons who did not get the opportunity to
participate in the selection process and appointment of persons from the
waiting list in vacancies that arose subsequent to the notification is
unconstitutional. The Division Bench also held that they were not able to
agree with the view taken by the Division Bench in W.A.No. 488 of 2021
on the legal aspect that the case dealt with therein would fall under the
category of rare and exceptional or emergent situations where deviation
from the rule that vacancies over and above the number of vacancies
cannot be filled up could be made. The Division Bench took note of the
resolution issued by the Managing Committee cancelling the appointment
of Smt. Reema and the other petitioners and found that their
appointment was decided to be cancelled not only for the reason that
sufficient vacancies were unavailable at the time of their appointment but
also that the same was made by the Administrator without the
knowledge and permission of the Managing Committee. Finally, it was
held that since deviation from the rule would result in an infraction of the
constitutional rights of third parties, rare and emergent situations as
mentioned in Rakhi (supra), are situations where an employer is not in a
position to carry out a fresh selection for reasons beyond its control,
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where the post is such that a provisional or a temporary hand cannot
occupy the same and whilst so, the requirement is such that it cannot
brook the delay of the selection process and likewise. The Division Bench
felt that in view of the settled position, it may not be possible for their
Lordships to follow the view taken by this Court in W.A.No. 488 of 2021.
It was in the said circumstances that the matter was placed before the
Full Bench.
7. We have heard Smt. V.P.Seemanthini, the learned Senior counsel
appearing for the appellant as instructed by Sri. M.R.Anison and
Sri. T.K.Vipin Das, the learned counsel appearing for the respondents.
8. We shall now deal with the individual issues.
9. As we noted at the outset, the first question is whether the vacancies can
be filled beyond the advertised number and whether recruiting
candidates in excess of the notified vacancies constitutes a denial of
rights to individuals who did not apply, thereby violating Articles 14 and
16(1) of the Constitution of India. We shall now refer to the binding
precedents.
10. In Prem Singh and Ors. v. Haryana State Electricity Board and
Ors.6, the facts were that as against 62 advertised posts, the State
[(1996) 4 SCC 319]
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Electricity Board made appointments on 138 posts. The selection process
was started for 62 clear vacancies and at that time, anticipated vacancies
were not taken into account. The question posed before the Apex Court
was whether it was open to the Board to prepare a list of as many as 212
candidates and appoint as many as 137 out of that list when the number
of posts advertised was only 62. The Apex Court, after referring to the
past precedents held as follows in paragraph No. 25 of the judgment.
25. From the above discussion of the case law it
becomes clear that the selection process by way of
requisition and advertisement can be started for clear
vacancies and also for anticipated vacancies but not for
future vacancies. If the requisition and advertisement are for
a certain number of posts only the State cannot make more
appointments than the number of posts advertised, even
though it might have prepared a select list of more
candidates. The State can deviate from the advertisement
and make appointments on posts falling vacant thereafter in
exceptional circumstances only or in an emergent situation
and that too by taking a policy decision in that behalf. Even
when filling up of more posts than advertised is challenged
the court may not, while exercising its extraordinary
jurisdiction, invalidate the excess appointments and may
mould the relief in such a manner as to strike a just balance
between the interest of the State and the interest of persons
seeking public employment. What relief should be granted in
such cases would depend upon the facts and circumstances
of each case.
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What was held was that the selection process can be initiated for clear
and anticipated vacancies, but not for future vacancies. If the
advertisement specifies a certain number of posts, the State cannot
appoint more candidates than advertised, even if a larger select list has
been prepared. Deviations from this rule, allowing appointments to posts
that become vacant later, are permissible only in exceptional or emergent
situations and must be supported by a policy decision. If such excess
appointments are legally challenged, courts may not necessarily invalidate
them but will tailor the relief to balance the interests of the State and
those seeking public employment, with the specific relief depending on
the unique facts of each case.
11. In State of Bihar v. Madan Mohan Singh7, the Apex Court has held
that if the advertisement and the consequent selection process were
meant only to fill up a certain number of vacancies then the merit list will
hold good for the purpose of filling up those notified vacancies and no
further. In that case, 32 vacancies were advertised but a select list of 129
candidates was prepared. A question arose whether more candidates
could be appointed on the basis of the said select list. This Court held that
once the 32 vacancies were filled up, the process of selection for those 32
[1994 Supp (3) SCC 308]
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vacancies was exhausted and came to an end. It was further held that if
the same list has to be kept subsisting for the purpose of filling up other
vacancies, that would naturally amount to a deprivation of the rights of
other candidates who would have become eligible subsequent to the said
advertisement and selection process.
12. In State of U.P. v. Rajkumar Sharma8, the Apex Court, after referring
to a catena of past precedents reiterated the law filling up of vacancies
over and above the number of vacancies advertised would be violative of
the fundamental rights granted under Articles 14 and 16 of the
Constitution. It was observed as follows in paragraph Nos. 13 to 15 of the
judgment.
13. Filling up of vacancies over and above the number of
vacancies advertised would be violative of the fundamental rights
granted under Articles 14 and 16 of the Constitution. (See Union
of India v. Ishwar Singh Khatri [1992 Supp (3) SCC 84]; Gujarat
State Dy. Executive Engineers' Assn. v. State of Gujarat [1994
Supp (2) SCC 591]; State of Bihar v. Secretariat Asstt. Successful
Examinees Union, 1986 [(1994) 1 SCC 126]; Prem Singh v.
Haryana SEB [(1996) 4 SCC 319]; Surinder Singh v. State of
Punjab [(1997) 8 SCC 488] and Kamlesh Kumar Sharma v.
Yogesh Kumar Gupta [(1998) 3 SCC 45]).
[(2006) 3 SCC 330]
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14. Selectees cannot claim the appointment as a matter of right.
Mere inclusion of candidate's name in the list does not confer any
right to be selected, even if some of the vacancies remained
unfilled and the candidates concerned cannot claim that they
have been given a hostile discrimination. (See Shankarsan Dash
v. Union of India [(1991) 3 SCC 47]; Asha Kaul v. State of J&K
[(1993) 2 SCC 573]; Union of India v. S.S. Uppal [(1996) 2 SCC
168]; Hanuman Prasad v. Union of India [(1996) 10 SCC 742];
Bihar Public Service Commission v. State of Bihar [(1997) 3 SCC
198]; Syndicate Bank v. Shankar Paul [(1997) 6 SCC 584];
Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash
Mishra [(1997) 10 SCC 264]; Punjab SEB v. Seema [1999 SCC
(L&S) 629]; All India SC & ST Employees' Assn. v. A. Arthur Jeen
[(2001) 6 SCC 380]; Vinodan T. v. University of Calicut [(2002) 4
SCC 726]; S. Renuka v. State of A.P. [(2002) 5 SCC 195] and
Batiarani Gramiya Bank v. Pallab Kumar [(2004) 9 SCC 100]).
15. Even if in some cases appointments have been made by
mistake or wrongly that does not confer any right on another
person. Article 14 of the Constitution does not envisage negative
equality, and if the State committed the mistake it cannot be
forced to perpetuate the same mistake. (See Sneh Prabha v.
State of U.P. [(1996) 7 SCC 426]; Secy., Jaipur Development
Authority v. Daulat Mal Jain [(1997) 1 SCC 35]; State of Haryana
v. Ram Kumar Mann [(1997) 3 SCC 321]; Faridabad C.T. Scan
Centre v. D.G., Health Services [(1997) 7 SCC 752]; Jalandhar
Improvement Trust v. Sampuran Singh [(1999) 3 SCC 494]; State
of Punjab v. Dr. Rajeev Sarwal [(1999) 9 SCC 240]; Yogesh
Kumar v. Govt. of NCT, Delhi [(2003) 3 SCC 548]; Union of India
v. International Trading Co. [(2003) 5 SCC 437] and Kastha
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Niwarak Grihnirman Sahakari Sanstha Maryadit v. President,
Indore Development Authority [(2006) 2 SCC 604]).
13. In essence, what has been held by the Apex Court is that filling
vacancies beyond the number advertised violates the fundamental rights
guaranteed under Articles 14 and 16 of the Constitution. Candidates
included in a select list have no inherent right to be appointed, even if
some vacancies remain unfilled. The mere inclusion of a name in the list
does not guarantee selection, and candidates cannot claim
discrimination if not appointed. Moreover, even if appointments were
mistakenly or wrongly made in some cases, this does not entitle others
to the same. Article 14 does not support "negative equality," meaning
the State cannot be compelled to repeat its errors.
14. The next question is the necessary fallout of the answer to the first
issue. A necessary consequence of the wrong exercise of filling
vacancies beyond the post advertised would unfairly cause a
disadvantage to the individuals who became eligible after the application
deadline but were unable to apply because the vacancies were not
advertised for them. This issue was considered in Hoshiar Singh v.
State of Haryana9, wherein in paragraph 10 of the judgment, it was
[1993 Supp (4) SCC 377]
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observed as under:
10........................Since the requisition was for eight posts of
Inspector of Police, the Board was required to send its
recommendations for eight posts only. The Board, on its own,
could not recommend names of 19 persons for appointment
even though the requisition was for eight posts only because the
selection and recommendation of larger number of persons than
the posts for which requisition is sent. The appointment on the
additional posts on the basis of such selection and
recommendation would deprive candidates who were not
eligible for appointment to the posts on the last date for
submission of applications mentioned in the advertisement and
who became eligible for appointment thereafter, of the
opportunity of being considered for appointment on the
additional posts because if the said additional posts are
advertised subsequently those who become eligible for
appointment would be entitled to apply for the same.
15. The Apex Court held that appointing candidates to additional posts
based on an earlier selection and recommendation would unfairly
disadvantage those who were not eligible by the original application
deadline but became eligible later. These individuals would be deprived
of the opportunity to be considered for these additional posts. If these
posts were advertised later, those who became eligible in the interim
would have the right to apply, ensuring a fair chance for all qualified
candidates.
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16. Now the question is whether a candidate in the waiting list has a right to
appointment against vacancies that were not notified or available when
the select list was initially prepared. It also needs to be considered
whether the waiting list can be treated as a reservoir to fill vacancies
that arise after the issuance of a notification/advertisement, allowing
candidates from the list to be drawn as and when necessary. The final
question is whether and under what circumstances can the rule against
recruiting candidates in excess of the notified vacancies be relaxed.
17. In Gujarat State Dy. Executive Engineers' Assn. v. State of
Gujarat10, the question that arose for consideration revolved around the
interpretation of a circular issued by the State Government to the effect
that waiting lists prepared from competitive examination results would
remain valid until the results of subsequent examinations are declared.
The key question was whether such a waiting list could remain active for
up to 10 years and continue to serve as a recruitment source. The
following observations made by the Apex Court are of general
application. It was observed as under in paragraphs Nos 8 and 9 of the
judgment
"8. How a waiting list should operate and what is its nature may
be governed by the rules. Usually it is linked with the selection or
[1994 Supp (2) SCC 591]
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examination for which it is prepared. For instance, if an
examination is held say for selecting 10 candidates for 1990 and
the competent authority prepares a waiting list then it is in
respect of those 10 seats only for which selection or competition
was held. Such lists are prepared either under the rules or even
otherwise mainly to ensure that the working in the office does
not suffer if the selected candidates do not join for one or the
other reason or the next selection or examination is not held
soon. Therefore, once the selected candidates join and no
vacancy arises due to resignation etc. or for any other reason
within the period the list is to operate under the rules or within
reasonable period where no specific period is provided then
candidate from the waiting list has no right to claim appointment
to any future vacancy which may arise unless the selection was
held for it.
9. A waiting list prepared in an examination conducted by the
Commission does not furnish a source of recruitment. It is
operative only for the contingency that if any of the selected
candidates does not join then the person from the waiting list
may be pushed up and be appointed in the vacancy so caused or
if there is some extreme exigency the Government may as a
matter of policy decision pick up persons in order of merit from
the waiting list. But the view taken by the High Court that since
the vacancies have not been worked out properly, therefore, the
candidates from the waiting list were liable to be appointed does
not appear to be sound. This practice, may result in depriving
those candidates who become eligible for competing for the
vacancies available in future. If the waiting list in one
examination was to operate as an infinite stock for appointments,
there is a danger that the State Government may resort to the
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device of not holding an examination for years together and pick
up candidates from the waiting list as and when required. The
constitutional discipline requires that this Court should not permit
such improper exercise of power which may result in creating a
vested interest and perpetrate waiting list for the candidates of
one examination at the cost of entire set of fresh candidates
either from the open or even from service.
As has been held by the Apex Court, a waiting list prepared from an
examination is not intended to serve as a continuous source of
recruitment. It is only applicable in specific circumstances, such as when
a selected candidate does not join, allowing the next person on the list
to fill the vacancy, or in cases of extreme urgency where the
government may decide, as a policy matter, to appoint individuals from
the waiting list based on merit. If a waiting list were allowed to serve as
an indefinite source for appointments, there is a danger that the
authorities concerned might avoid holding new examinations for years
and instead continually draw from the waiting list. Such a practice would
undermine constitutional discipline and could create a vested interest,
effectively sidelining a new pool of candidates.
18. In State of Punjab v. Raghbir Chand Sharma11, the Apex Court
examined the case where only one post was advertised and the
candidate whose name appeared at Serial No. 1 in the select list joined
[(2002) 1 SCC 113]
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the post but subsequently resigned. The Court rejected the contention
that post can be filled up offering the appointment to the next candidate
in the select list observing as under in para 4 of the judgment.
"4. ... With the appointment of the first candidate for the
only post in respect of which the consideration came to be
made and select panel prepared, the panel ceased to exist
and has outlived its utility and, at any rate, no one else in
the panel can legitimately contend that he should have
been offered appointment either in the vacancy arising on
account of the subsequent resignation of the person
appointed from the panel or any other vacancies arising
subsequently.
19. In Mukul Saikia v. State of Assam12, the Apex Court while dealing
with an identical issue held that "if the requisition and advertisement
was only for 27 posts, the State cannot appoint more than the number
of posts advertised." The select list "got exhausted when all the 27 posts
were filled". Thereafter, the candidates below the 27 appointed
candidates have no right to claim appointment to any vacancy in regard
to which selection was not held. The "currency of select list had expired
as soon as the number of posts advertised are filled up, therefore,
appointments beyond the number of posts advertised would amount to
filling up future vacancies" and said the course is impermissible in law.
[(2009) 1 SCC 386]
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20. In Madan Lal v. State of J&K13, a recruitment process was initiated
by the Jammu and Kashmir Government to fill 11 clear and existing
vacancies for the position of Munsiff. It was contended by the
petitioners that the requisition did not include or anticipate any future
vacancies, as the letter only requested the preparation of a select list of
20 candidates to ensure a sufficient pool if any of the first 11 candidates
failed to join. According to them the contention that the requisition was
for both clear and anticipated vacancies cannot therefore be sustained.
While explaining the position, it was observed as under by the Apex
Court:
24................................A mere look at the rule shows that
pursuant to the requisition to be forwarded by the
Government to the Commission for initiating the recruitment
process, if the Commission has prepared the merit list and
the waiting list of selected candidates such list will have a life
of one year from the date of publication in Government
Gazette or till it is exhausted by the appointment of
candidates, whichever is earlier. This means that if requisition
is for filling up of 11 vacancies and it does not include any
anticipated vacancies, the recruitment to be initiated by the
Commission could be for selecting 11 suitable candidates.
The Commission may by abundant caution prepare a merit
list of 20 or even 30 candidates as per their inter se ranking
on merit. But such a merit list will have a maximum life of
[(1995) 3 SCC 486]
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one year from the date of publication or till all the required
appointments are made whichever event happened earlier. It
means that if requisition for recruitment is for 11 vacancies
and the merit list prepared is for 20 candidates, the moment
11 vacancies are filled in from the merit list the list gets
exhausted, or if during the span of one year from the date of
publication of such list all the 11 vacancies are not filled in,
the moment the year is over the list gets exhausted. In either
event, thereafter, if further vacancies are to be filled in or
remaining vacancies are to be filled in, after one year, a fresh
process of recruitment is to be initiated giving a fresh
opportunity to all the open market candidates to
compete.............
...........We cannot agree with the learned counsel for
respondents that during the period of one year even if all the
11 vacancies are filled in for which requisition is initiated by
the State in the present case and if some more vacancies
arise during one year, the present list can still be operated
upon because the Commission has sent the list of 20 selected
candidates. As discussed above, the candidates standing at
Serial Nos. 12 to 20 in the list can be considered only in case
within one year of its publication, all the 11 vacancies do not
get filled up for any reason. In such a case only this
additional list of selected candidates would serve as a
reservoir from which meritorious suitable candidates can be
drawn in order of merit to fill up the remaining requisitioned
and advertised vacancies, out of the total 11 vacancies. If
that cannot be done for any reason within one year of the
publication of the list, even this reservoir will dry up and the
entire list will get exhausted.
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The Court has held that the merit and waiting lists are only valid
during its period of validity. The scope of recruitment has to be confined
to the specific number of vacancies outlined in the requisition, and any
extended merit list prepared by the Commission (e.g., selecting 20
candidates for 11 vacancies) is only applicable within the one-year
validity period or until those vacancies are filled. Once the specified
vacancies are filled or the one-year period expires, the list is exhausted,
and it cannot be used to fill new vacancies that arise thereafter.
Consequently, any remaining or new vacancies can only be filled through
a fresh recruitment process, ensuring that all eligible candidates have
the opportunity to compete.
21. In Rakhi Ray v. High Court of Delhi14, the facts were that an
advertisement issued by the Delhi High Court on May 19, 2007, to fill 20
District Judge vacancies, with 13 for the general category, 3 for
Scheduled Castes, and 4 for Scheduled Tribes. The appellants, belonging
to the general category, participated in the selection process, and the
results were declared on January 3, 2008. Although the appellants were
included in the merit list, they ranked below the top 13, and all 13
general category vacancies were filled. However, the reserved vacancies
for Scheduled Castes and Scheduled Tribes remained unfilled due to a
[(2010) 2 SCC 637]
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lack of suitable candidates. Subsequently, unsuccessful candidates filed
writ petitions in the Delhi High Court, arguing that 13 additional
vacancies arose during the selection process which should have been
filled from the existing select list based on a precedent set in Malik
Mazhar Sultan v. U.P. Public Service Commission15. The High
Court after considering the contentions came to the conclusion that only
three vacancies arose after the advertisement and directed that two of
these be offered to general category candidates and one to a Scheduled
Caste candidate. The appellants, who were left out approached the Apex
Court seeking appointment. While deciding the issue, the Apex Court
after referring to the previous precedents observed as under in
paragraph 7 of the judgment.
7. It is a settled legal proposition that vacancies cannot be
filled up over and above the number of vacancies advertised
as "the recruitment of the candidates in excess of the notified
vacancies is a denial and deprivation of the constitutional
right under Article 14 read with Article 16(1) of the
Constitution", of those persons who acquired eligibility for the
post in question in accordance with the statutory rules
subsequent to the date of notification of vacancies. Filling up
the vacancies over the notified vacancies is neither
permissible nor desirable, for the reason, that it amounts to
"improper exercise of power and only in a rare and
exceptional circumstance and in emergent situation, such a
rule can be deviated from and such a deviation is permissible
only after adopting policy decision based on some rationale.
[(2008) 17 SCC 703)]
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otherwise the exercise would be arbitrary. Filling up of
vacancies over the notified vacancies amounts to filling up of
future vacancies and thus, is not permissible in law.
After observing as above, it was held as under in paragraph 12 of
the judgment:
12. In view of above, the law can be summarised to the effect
that any appointment made beyond the number of
vacancies advertised is without jurisdiction, being violative
of Articles 14 and 16(1) of the Constitution of India, thus, a
nullity, inexecutable and unenforceable in law. In case the
vacancies notified stand filled up, the process of selection
comes to an end. Waiting list, etc. cannot be used as a
reservoir, to fill up the vacancy which comes into existence
after the issuance of notification/advertisement. The
unexhausted select list/waiting list becomes meaningless
and cannot be pressed in service any more.
22. In High Court of Kerala v Reshma and others16, after referring to
the past precedents, it was held as under:
55. 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
[(2021) 3 SCC 755]
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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
expected 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.
The constitutional principle, as upheld by the Apex Court,
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mandates that the selection process for public appointments must
adhere to the guarantees of equality under Articles 14 and 16 of the
Constitution. The selection process must be reasonable and align with
the advertised number of posts. While authorities may consider actual
and anticipated vacancies (those likely to arise due to promotions,
resignations, or deaths), they cannot account for future vacancies in a
different recruitment year. Only vacancies within the current selection or
recruitment year, whether actual or reasonably anticipated, can be
included in the notification. These constitutional principles would
override any statutory provisions to the contrary.
23. Now what remains is the question as to the circumstances under which
vacancies over the notified vacancies could be filled up. The Apex Court
in Rakhi Ray (supra) had after holding that such filling up is neither
permissible nor desirable, went on to state that such an exercise can be
carried out only in a rare and exceptional circumstance and in emergent
situations that too after adopting a policy decision based on some
rationale. The same view was taken in Prem Singh (supra) as well. It
would be relevant to note that though such an observation was made in
Rakhi Ray (supra), while deciding the issue it was held that
appointment made beyond the number of vacancies advertised is
without jurisdiction and is violative of Articles 14 and 16(1) of the
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Constitution of India, and is a nullity and cannot be enforceable under
law. The Division Bench in the reference order has spelled out certain
circumstances under which such deviations can be allowed. We are of
the view that deviation from the rule that vacancies cannot be filled
beyond the number advertised is only permissible under rare and
exceptional circumstances or in emergent situations. Such deviations are
allowed only when a policy decision is taken based on a sound rationale.
24. As held in Prem Singh (supra), when the filling up of more posts than
advertised is challenged, the Courts are bound to consider whether the
mandate in Rakhi Ray and Prem Singh (supra) has been followed and
then mould the relief in the facts and circumstances of each case.
25. Now what remains is the nature of the order that is to be passed by us.
Section 7 of the High Court Act (Kerala) says that when a question of
law is referred to a Full Bench, the Full Bench may finally decide the
case or return it with an expression of its opinion upon the question
referred for final adjudication by the Bench which referred the question.
As we have dealt with the entire issue, we thought it fit to decide the
case rather than return it to the Division Bench with our opinion.
26. The learned Single Judge, on the basis of the materials available, has
rightly noted that the notification was issued for filling up two vacancies
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of UPSA and the ranked list was prepared pursuant to the notification for
filling up the notified vacancies alone. The fact that a decision had
already been taken on 31.12.2019 to the effect that the ranked list
would be operated only for the purpose of filling up the notified vacancy
was also rightly noticed. As the advertisement was for a specific number
of posts, the Devaswom could not have appointed more candidates than
advertised, even if a larger select list had been prepared. Furthermore,
in the case on hand, no policy decision had been taken with due and
careful consideration of the facts and circumstances. The Managing
Committee's decision, as reflected in Ext.P4, to extend the life of Ext. P2
select list was made without taking note of the vital facts and
circumstances. The Devaswom, in its counter affidavit, admits that this
resolution was based on the mistaken belief that Ext.R2(a) was a
genuine and bona fide request from the Headmistress. Furthermore,
Devaswom asserts that Ext.P4 is tainted by fraud, rendering the
resolution invalid. Such a resolution fails to meet the criteria established
by the Apex Court in Rakhi Ray (supra). Even otherwise, the request of
the Headmistress to keep the select list active to fill future vacancies and
avoid class disruptions due to a lack of teachers does not constitute a
rare and exceptional circumstance or an emergent situation, fulfilling the
mandate of law. We are unable to accept the declaration of law made by
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the Division Bench in the judgment dated 7.7.2021 in W.A. No. 488 of
2021 (Reema R V Guruvayoor Devaswom and Others).
In view of the discussions above, we find no merit in this Writ
Appeal, and the same is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
C. JAYACHANDRAN,
JUDGE
Sd/-
C. PRATHEEP KUMAR,
JUDGE
PS/05/09/24
