The Supreme Court has ruled that Candidates included in a rank list cannot enforce obligation on Government  Agency to report them of all the vaccancies, they have no such right per se.

The three-judge bench comprisng of Justice UU Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi, however added that the candidates do have a legal recourse and the judicial proceeding would seek State's explaination first and if not found to be arbitrary, appropriate directions may follow.

"In such situations, undoubtedly the individuals awaiting appointment may have recourse to judicial remedies. In such proceedings, the government or the concerned agency can furnish a suitable explanation. If that is found to be arbitrary, appropriate directions may follow. However, the procedure in all such cases, would be to consider the state’s response."

Brief Facts of the Case

In the present appeal, the Kerala Administrative Tribunal's impugned orders have been challanged by Director of Kerala Public Service Commission which required the reporting of 28 vacancies in the post of Medical Officer (Ayurveda), Assistant Insurance Officer in the Department of Indian System of Medicine.

The Director's WP was dismissed in Kerala High Court on the ground that it had been filed belatedly. As far as the other petitions filed by the department were concerned, the High Court took note of the fact that in some cases Review Petitions were filed and after their dismissal Writ Petitions were preferred before it, and in some5 the orders remained unchallenged. As a consequence, the High Court held that the finality of the Tribunal’s order bound the department and consequently it could not maintain the Writ Petitions which were dismissed.

Supreme Court Observation

The Top Court while citing SC Judgement in Shankersan Dash v. Union of India, rejected the Tribunal's view and held that Candidates don't have any right per se to enforce obligation on KPSC.

"It, is therefore, as against vacancies that are reported to the KPSC, that the candidates have some semblance of a right. However, as far as those not reported are concerned, the candidates cannot claim a right per se."

The Court said that KAT is mistaken in not making an inquiry and passing the order hastly.

"In the present case, the KAT in this court’s opinion, entirely misdirected itself in making an inquiry whether vacancies had arisen in June 2017, with promotion of some Medical Officers. As the department explained, those promotions could not automatically result in vacancies, having regard to the fact that excess number of Medical Officers were on the rolls. Furthermore, the KAT in our opinion, should not have inquired into the matter, once it was reported that all vacancies that could be reported, had been reported- as is evident from the reply filed by the department, as well as the tabular chart in it."
"There is nothing on record to suggest that the government was tardy in reporting or advising, or was intentionally dragging its feet. This order was made at the first hearing, without providing the department with any opportunity to respond to the demand for an interim order."

The Court also pulled up Kerala High Court for its 'cavalier approach' while dismissing the plea under Article 226 of the Constitution and not deaing with the merits of the case.

"This court is of the opinion that the approach of the High Court was to put it mildly, cavalier. When the department approached the High Court under Article 226 of the Constitution, its petition was rejected on the ground of laches, despite the fact that the main order of the KAT was given just a year before presentation of the petition; furthermore, the department had also filed a review petition. As far as the other writ petitions are concerned, the High Court gave them a short shrift saying that in one of the applications allowed by the KAT, the order had been allowed to become final. This approach was wrong, because the department had approached the KAT with a review, which was pending. Furthermore, even if that were so, the High Court should have considered the matter on merits, given that the issue involved, had large ramifications"

The Court described the State's right to challenge a judgment as per M/S Shenoy and Co. Vs. The Commercial Tax Officer Bangalore & Ors, 1985 Latest Caselaw 82 SC wherein it was established that the state or any public agency, cannot be precluded from challenging a judgment, on the ground that it approaches this court, filing an appeal against only one party. Even if in that case, the normative basis of the judgment under appeal is disturbed, and the issue concerns a matter having public ramifications, such as tax, or – in this case, recruitment, the final judgment would bind all concerned.

"In the present case too, therefore, the High Court’s reasoning that the state had not filed petitions against other persons, was flawed; that ipso facto should not have precluded an examination of the merits of the KAT’s orders."

Read Judgement Here:

Picture Source :

 
Sheetal Joon