HIGH COURT OF KERALA versus RESHMA A. & OTHERS ETC. on 11 January 2021

[2021] 1 S.C.R. 289

HIGH COURT OF KERALA

v.

RESHMA A. & OTHERS ETC.

(Civil Appeal Nos. 3974-3975 of 2020)

JANUARY 11, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDINDIRA BANERJEE, JJ.]

Service Law: Selection – Vacancies – High Court held thatappointments to the post of Munsiff-Magistrate can be beyond thenumber of probable number of vacancies advertised in thenotification inviting applications – High Court held, on a literalreading of r.7(2) of the Kerala Judicial Service Rules, 1991 (asamended in 2019), that vacancies which arise within a year of theapproval of the select list by the Governor should be filled up fromamongst candidates on the list even though this exceeds the numberof probable vacancies which were notified, unless a fresh list isnotified within a year – Consequence of the decision was thatvacancies attributable to the next selection year, 2020, have to befilled 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 directionsin Malik Mazhar Sultan (3) case to bring the rules in accord withthe governing principles of constitutional jurisprudence in mattersof public employment – r.7(1) which refers to “notifying the probablenumber of vacancies likely to be filled up” does not expresslyindicate what is meant by this expression – The ambit of that phraseshould receive content and meaning based on what was envisionedin Malik Mazhar Sultan (3) case – ‘Probable number of vacancies’is based on computing the existing vacancies and the vacanciesanticipated to occur during the year – To allow the concept ofprobable number of vacancies in r.7(1) to trench upon futurevacancies which will arise in a succeeding year would lead to aserious constitutional infraction – Vacancies for 2020 must beallocated to candidates who are duly selected in pursuance of therecruitment process for 2020 – Candidates who have ranked lowerin the 2019 selection and were unable to obtain appointments cannot

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Aappropriate the vacancies of a subsequent year to themselves – Toallow such a claim would be an egregious legal and constitutionalerror – Kerala Judicial Service Rules, 1991 (as amended in 2019)– r.7(1) and (2) – Interpretation of Statutes – Harmoniousconstruction – Judicial Service.

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BService Law: Selection – Process of selection in makingappointments to public posts – Held: Is subject to the guarantees ofequality under Art.14 and of equality in matters of public employmentunder Art.16 – The process of selection must comport with theprinciples of reasonableness – Constitution of India – Arts. 14 and16.C

Service Law: Selection – Anticipated vacancies – Meaningof – Held: Anticipated vacancies are the vacancies which can bereasonably contemplated to arise due to the normal exigencies ofservice such as promotion, resignation or death.

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Service Law: Selection – Actual and anticipated vacancies –Difference from future vacancies – Held: Where the authority whichmakes a selection advertises a specific number of posts, the processof selection cannot ordinarily exceed the number of posts whichhave been advertised – While notifying a process for appointment,Ethe authority may take into consideration the actual and anticipatedvacancies but not future vacancies – Future vacancies which ariseduring a subsequent recruitment year cannot be treated asanticipated vacancies of a previous selection year.

Words and Phrases – Expression ‘probable’ – Meaning of.FAllowing the appeals, the Court

Conclusion

HELD:1. The constitutional principle which findsrecognition in the precedents of this Court is that the process ofselection in making appointments to public posts is subject toGthe guarantees of equality under Article 14 and of equality inmatters of public employment under Article 16. The process ofselection must comport with the principles of reasonableness.Where the authority which makes a selection advertises a specificnumber of posts, the process of selection cannot ordinarily exceed H

the number of posts which have been advertised. While notifyinga process for appointment, the authority may take intoconsideration the actual and anticipated vacancies but not futurevacancies. Anticipated vacancies are the vacancies which can bereasonably contemplated to arise due to the normal exigenciesof service such as promotion, resignation or death. Hence, innotifying a given number of posts for appointment, the publicauthority may legitimately take into account the number ofvacancies which exist on the date of the notification and vacancieswhich can reasonably be accepted to arise in the exigencies ofthe service. While the exact number of posts which may fall vacantdue to circumstances such as promotion, resignation or deathmay be difficult to precisely determine, the authority may make areasonable assessment of the expected number of vacancies onthese grounds. However, future vacancies conceptually fall in adistinct class or category. Future vacancies which arise during asubsequent recruitment year cannot be treated as anticipatedvacancies of a previous selection year. Vacancies which wouldarise outside the fold of the recruitment year would not fall withinthe ambit of anticipated vacancies. For it is only the vacancies,actual and anticipated which would fall within the course of theselection or recruitment year that can be notified when theselection process is initiated. These are constitutional principlesto which statutory edicts are subordinate. [Para 45][329-C-H]

2.1. The Kerala Rules 1991 preceded the judgment in MalikMazhar Sultan (3) delivered on 4th January, 2007. The amendmentwhich came into force on 19 January 2019 is evidently after thedecision of this Court. The effort, as a matter of statutoryinterpretation, must be to harmonize the directions which wereissued by this Court in Malik Mazhar Sultan (3) which are relatableto the jurisdiction of this Court under Article 142 of theConstitution and the statutory rules. This Court has noticed inthat decision that there were rules in force in the States and theUnion Territories governing the selection to their judicial service.While issuing directions in regard to the maintenance of timelinesand for the modalities to be followed in an annual selection, thisCourt clarified that this would not impinge upon the independence ABC

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Aof the Public Service Commission or the role of the High Courtsin the States. [Para 48][331-E-H]

2.2. The object and purpose of this Court in the decision inMalik Mazhar Sultan (3) was to ensure the expeditious filling upof judicial vacancies in the State Judicial Services. It was in thisBperspective, that the Court set down strict timelines forcompliance. At the same time, it is evident that the decision didnot provide for other essential aspects such as eligibility,modalities for conducting the examination and the application ofreservations in making appointments to state judicial services.CHence, a significant field in regard to the process of selectionand appointments to the judicial services is not covered by thedecision in Malik Mazhar Sultan (3) for which one has to fall backupon construing the rules governing the state judicial service inquestion. But a stand out feature which emerges from the decisionin Malik Mazhar Sultan (3) must equally be emphasized. TheDjudgment of this Court enunciates, in no uncertain terms, thatthe process of selection to the state judicial services has to takeplace on an annual basis. The court however reserved to itselfthe power to exempt in a given situation a State or Union Territoryfrom compliance with the time schedule or extend time whereEpeculiar local conditions require the grant of such an exemptionor extension. The significant aspect of the decision in MalikMazhar Sultan (3) is that the recruitment process is initiated eachyear with a notification of vacancies and culminates in theappointment of candidates and their joining service. Once theprocess of selection is annual, the notification of probable orFanticipated vacancies has to be for the selection year. Theexpression ‘probable’ means what is anticipated, expected andlikely. The expression thus comprehends the existing vacanciesand those which are anticipated due to retirement, promotion,death or resignation and to which some vacancies can be addedto incorporate imponderable events during the recruitmentGprocess. 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, H

intent and purpose underlying the directions that were issuedunder Article 142 of the Constitution in Malik Mazhar Sultan (3).This exercise becomes necessary for another reason. In thepresent case, Rule 7(1) refers to “notifying the probable numberof vacancies likely to be filled up”. However, Rule 7(1) does notexpressly indicate what is meant by this expression. The ambitof that phrase should receive content and meaning based on whatwas envisioned in Malik Mazhar Sultan (3). [Para 48][332-E-H;333-A-D]

2.3. Significantly, the entire process which is contemplatedby the decision in Malik Mazhar Sultan (3) is an annual process.Hence, the vacancies which are to be notified in the advertisementwhich is issued by the High Court are relatable to the recruitmentyear for which a selection is carried out. Malik Mazhar Sultan (3)does not incorporate future vacancies, that is those which liebeyond 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 ofRule 7(1) of the Kerala Rules 1991 as amended, it would beappropriate to harmonize the ambit of the expression “notifyingthe probable number of vacancies” on the basis of the Article142 directions in Malik Mazhar Sultan (3). This would not doviolence to the provisions of Rule 7(1), since Sub-rule 1 does notdefine what is meant by probable vacancies. Moreover, Rule 7(2)deals with tenure of the approved list while the determination ofthe probable number of vacancies falls within the ambit of Rule7(1). Hence, in determining the probable number of vacancieslikely to be filled up, the particular High Court has to take intoaccount: (i) The existing number of vacancies; (ii) Anticipatedvacancies during the year arising due to retirements and otherexigencies of service including promotion, death and resignation;and (iii) Some candidates are to be included in the wait-list. Theambit of the probable number of vacancies in Rule 7(1) must bebased on this assessment. In fact, this was exactly what was doneby the appellant. [Para 49][334-G-H; 335-A-C]

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A4.1. There are significant problems in accepting the line ofinterpretation which found acceptance by the High Court. [Para50][355-E]

4.2. Firstly, this line of interpretation requires the appointingauthority to take into account vacancies which have arisen in theBsubsequent recruitment year 2020 in making appointments inpursuance of the selection for recruitment year 2019. This, as amatter of first principle, is impermissible. The determination ofprobable vacancies in terms of Rule 7(1) is a determination whichis based on the vacancies which are projected during the courseCof that recruitment year, in this case 2019. This exercise cannotcover, consistent with the mandate of Art 14 and Art 16, futurevacancies of a subsequent year of selection. Nor does Rule 7(1)bring vacancies of a future year within the computation of probablevacancies. [Para 51][335-E-G]

D4.3. Secondly, adopting such interpretation would lead toserious anomalies, as consequently, posts which have to beallocated for recruitment against the existing and anticipatedvacancies for 2020 would have to be reduced by allocating themto recruitment year 2019. This would require the appellant toprogressively remove from the ambit of the vacancies which areEnotified for the subsequent recruitment year, the vacancies whichare allocated to the previous year on the basis of a supposedinterpretation of Rule 7(2). This would clearly be impermissibleand bring uncertainty to the recruitment for subsequent years. Itwill cause serious prejudice to candidates who qualify in terms ofFeligibility during the recruitment process of 2020 by reducingthe number of probable vacancies and adding them to the previousrecruitment cycle. [Para 52][335-H; 336-C-D]

4.4 There is a third anomaly which arises from such aninterpretation. If Rule 7(2) were to be given overriding importanceGwithout reading it in juxtaposition with the determination of theprobable number of vacancies under Rule 7(1), the issue is untilwhat period of time would vacancies arising after the date ofapproval by the Governor have to be factored into account. The H

plain consequence of the decision of the High Court would bethat vacancies which have arisen during 2020 would be allocatedto 2019. This could only be done if the vacancies for 2020were 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 ofthe High Court rests on constitutional principles. It is a settledprinciple of service jurisprudence that when vacancies are notifiedfor conducting a selection for appointments to public posts, thenumber of appointments cannot exceed the vacancies which arenotified. ‘Probable number of vacancies’ is based on computingthe existing vacancies and the vacancies anticipated to occurduring the year. It also accounts for the possibility of inclusion ofsome of the candidates that are in the wait-list. However, theexpression ‘probable’ cannot be interpreted as a vagueassessment of vacancies that isn’t founded in reason and can bealtered without a statutorily prescribed cause. To allow theconcept of probable number of vacancies in Rule 7(1) to trenchupon future vacancies which will arise in a succeeding year wouldlead to a serious constitutional infraction. Candidates who becomeeligible for applying for recruitment during a succeeding year ofrecruitment would have a real constitutional grievance thatvacancies which have arisen during a subsequent year duringwhich they have become eligible have been allocated to an earlierrecruitment year. If the directions of the High Court are followed,this would seriously affect the fairness of the process which hasbeen followed by glossing over the fact that vacancies which havearisen during 2020 will be allocated for candidates in the selectlist for the year 2019. Such a course of action would constitute aserious infraction of Articles 14 and 16 and must be avoided. Aharmonious interpretation of Rules 7(1) and (2) must be adoptedthat is consistent with the Article 142 directions in Malik MazharSultan (3) to bring the rules in accord with the governing principlesof 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 arisesfrom the judgment of the High Court. The solution suggested by A

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Athe High Court is that candidates may be selected and sent fortraining even against vacancies which have not arisen, inanticipation of vacancies arising in future. The High Courtobserved that when appointments were made in June 2020, theycould only be regularly made to vacancies that actually arose untilthat date. The High Court took notice of the fact that on itsBadministrative side, appointment of fresh recruits to vacancieswhich would arise in the ensuing year would put the trainingprocess into jeopardy. However, it suggested that in consultationwith the government, a procedure could be devised by whichtraining could be commenced for candidates against vacanciesCwhich have still not arisen and which would arise in the future.The High Court even suggested that the trainees appointedagainst possible future vacancies could be paid a stipend. Thesolution which has been suggested by the High Court is plainlyunacceptable. Persons are sent on training on being appointedto the judicial service and there cannot be two categories ofDtrainees, one of whom receives a stipend since the vacancies forwhich they have been selected are yet to arise. Moreover, therewill be a serious discontent if not all the candidates who are senton training in expectation of future vacancies can beaccommodated in service. We have emphasized the above aspect,Efor the simple reason that the High Court was cognizant of theserious problems which would result in the administration if itsdecisions were to hold the field. The suggestion by the High Courtthat the administration must send on training, candidates for whomthere are no vacancies in the service is contrary to law. In theevent that some of the candidates who are sent on training cannotFbe absorbed at a future date for want of vacancies, it would leadto a serious dissatisfaction and be unfair to the candidates whowere sent for training. This would also cause a burden on theexchequer requiring it to pay a stipend to persons who are yet tobe recruited to the judicial service, there being no presentGvacancies to accommodate them. [Para 55][339-C; 340-D-H;341-A-B]

5. The respondents have no vested right to appointmentfor the 2019 selections. They cannot claim any right, or evenequity, on the ground that the selection for the subsequent yearHmay be delayed. Vacancies for 2020 must be allocated to candidates who are duly selected in pursuance of the recruitmentprocess for 2020. Candidates who have ranked lower in the 2019selection and were unable to obtain appointments cannotappropriate the vacancies of a subsequent year to themselves.To allow such a claim would be an egregious legal andconstitutional error. [Para 58][343-A-C]

Malik Mazhar Sultan (3) v. Uttar Pradesh PublicService Commission (2008) 17 SCC 703; Rakhi Ray v.High Court of Delhi (2010) 2 SCC 637 : [2010] 2SCR 239; Prem Singh & Ors v. Haryana State ElectricityBoard & Ors (1996) 4 SCC 319 : [1996] 2 Suppl. SCR 401; Bedanga Talukdar v. Saifudaullah Khan &Ors (2011) 12 SCC 85 : [2011] 11 SCR 635; HirandraKumar v. High Court of Judicature at Allahabad, 2019SCC 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 ofHaryana (1985) 5 SCC 417 : [1985] Supp (1) SCR657; A V Bhogeshwarudu v. A.P. Public ServiceCommission JT (1989) 4 SC 130 : (1990) 1 LLN 6 :(1989) 59 FLR 749 (SC); Hoshiar Singh v. State ofHaryana: 1993 Supp (4) SCC 377 : 1994 SCC (L&S)249 : (1994) 26 ATC 325; State of Bihar v. SecretariatAsstt. Successful Examinees’ Union 1986 (1994) 1 SCC126 : [1993] 3 Suppl. SCR 134; Gujarat State Dy.Executive Engineers’ Assn. v. State of Gujarat: 1994Supp (2) SCC 591 : [1994] 3 SCR 983; Anurag KumarSingh v. State of Uttarakhand (2016) 9 SCC 426; RahulDutta 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. Stateof Haryana [2004] 5 Suppl. SCR 720 – referred to.

Black’s Law Dictionary – referred to.

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[2021] 1 S.C.R.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3974-3975 Of 2020.

EFrom the Judgment and Order dated 26.08.2020 of the High Courtof Kerala at Ernakulam in W.A. No. 994 of 2020 & W.A. No. 998 of2020.

V. Giri, Paramjit Singh Patwalia, V. Chitambaresh, Sr. Advs., T.G. Narayanan Nair, Ms. Ankita Gupta, Karthik S.D., John Mathew, Ms.FBina 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.

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A.Background

B.Submissions of the parties

C.Kerala Rules, 1991

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D.Malik Mazhar Sultan (3)A

E.Committee of Judges: Kerala High Court F.Harmonizing Rule 7(2) of the Kerala Rules, 1991 with MalikMazhar Sultan (3)

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G.Harmonizing Rule 7(2) of the Kerala Rules, 1991 withArticles 14 and 16 of the Indian Constitution H.Factual Analysis and Conclusion

A. Background

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1. A judgment of a Division Bench of the High Court of Keraladated 26 August 2020[1] forms the subject of the appeal. The High Courthas affirmed a judgment of its Single Judge[2] by holding that appointmentsto the post of Munsiff-Magistrate in the judicial service of the state canbe beyond the number of probable number of vacancies advertised inthe notification inviting applications. The High Court held, on a literalreading of Rule 7(2) of the Kerala Judicial Service Rules, 1991[3 ](asamended in 2019), that vacancies which arise within a year of the approvalof the select list by the Governor should be filled up from amongstcandidates on the list even though this exceeds the number of probablevacancies which were notified, unless a fresh list is notified within ayear. The consequence of the decision is that vacancies attributable tothe next selection year – 2020 – have to be filled up from the select listdrawn for the previous selection year, 2019.

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2. A notification was issued by the High Court[4] on 1 February2019 inviting applications for appointment to the posts of Munsiff-Magistrate in the Kerala Judicial Service, against regular vacancies andagainst a carry-forward called ‘No Candidates Available (NCA)’. Thirty-seven “probable” vacancies were notified including one vacancy reservedfor persons with disabilities, for appointment by direct recruitment andrecruitment by transfer. Eight vacancies were notified under the NCAcategory. The notification is reproduced below:

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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”

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[2021] 1 S.C.R.

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3. A preliminary examination was held on 26 March 2019 and theresult was declared on 19 July 2019. The main examination was held on31 August 2019 and 1 September 2019 and the result was declared on21 December 2019. Interviews were conducted between 8 and 25January 2020 and the merit list was published on 20 February 2020.After the competitive examination, a list of candidates qualified forselection was prepared and was published on 20 February 2020. Themerit list prepared by the appellant was approved by the Governor andwas notified by the Government of Kerala through a gazette notificationdated 07 May 2020. By way of this notification, 32 candidates wereappointed as Munsiff-Magistrate trainees by direct recruitment for theyear 2019 against regular vacancies and 5 candidates were subsequentlyappointed against NCA. All the selected candidates are undergoingtraining.

4. Two petitions were filed under Article 226 of the Constitutionbefore the High Court, Writ Petition No. 10007 of 2020 and Writ PetitionNo. 10361 of 2020 in May 2020, claiming that as on 07 May 2020 andthereafter, several vacancies had arisen for the post of Munsiff-Magistrate, which were not specified in the notification invitingapplications. The respondents, who were the original petitioners, claimedthat in accordance with Rule 7(2) as amended with effect from 14 January2019, all vacancies which arise for a period of one year after the approvalof the merit list by the Governor, are to be filled from the approved meritlist. The submission was that appointments of Munsiff-Magistrates mustnot be limited to thirty-two vacancies and must take into account allother vacancies that have arisen or which may arise till 6 May 2021, thatis, within one year from the date on which the merit list dated 7 May2020 was notified.

5. Opposing these submissions, the High Court of Kerala, theappellant herein, contended that appointment to vacancies in the judicialservice of the state is regulated by the Kerala Rules, 1991 and by thedirections and timelines fixed by this Court under Article 142 of theConstitution in Malik Mazhar Sultan (3) v. Uttar Pradesh PublicService Commission[5] (“Malik Mazhar Sultan (3)”). Relying onMalik Mazhar Sultan (3), the appellant argued that the notificationinviting applications is issued for only those vacancies that are availabletill 31 December of theyear in which the notification is issuedandonly AB

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Athese notified vacancies can be filled up by the recruitment process of agiven year.

6. During the pendency of the petitions, a fresh notification dated30 June 2020 was issued by the appellant inviting applications to 47probable regular posts of Munsiff-Magistrate. A corrigendum dated 30BJuly 2020 was issued deleting the term ‘probable’ from the number ofregular vacancies notified.

7. The Single Judge of the High Court, by a judgment and orderdated 9 July 2020, held that Rule 7(2) provides that vacancies existingand arising within one year from the date of approval of the merit list byCthe Governor are to be filled up from the select list, unless a fresh listcomes into force before the lapse of a year. The Single Judge held thatsince a special rule governs the selection and appointment of candidatesto a post, the appellant- as the High Court of Kerala on its administrativeside, could not deny appointment on the ground that the recruitmentwould not fall within the timelines prescribed in Malik Mazhar SultanD(3). Denial of appointment to the additional vacancies would, in the viewof the Single Judge, violate Articles 14 and 16 of the Constitution. TheSingle Judge further held that in case the appointments in accordancewith the Kerala Rules, 1991 are not in consonance with the directions ofthis Court, the appellant would have to seek permission or furnish anEexplanation before this Court. Rejecting the contention of the appellantthat no vacancy in excess of the thirty-seven specified in the notificationcan be filled up, the Single Judge held that only a probable number ofvacancies was specified in the notification. The writ petitions were allowedand the appellant was directed to forward an additional list of candidatesfrom the merit list dated 20 February 2020 to the Governor for approvalFand appointment to the posts of Munsiff-Magistrate.

8. This judgment and order of the Single Judge was affirmed bythe Division Bench in appeal. The Division Bench held that amendedRule 7(2) provides that the approved list is valid for the notified vacanciesand the vacancies arising within one year from the date of approval byGthe Governor or till a fresh list comes into force. Consequently, the meritlist approved on 7 May 2020 would be valid for vacancies till 6 May2021 or till a fresh list comes into force, whichever is earlier. The DivisionBench further held that the operation of the Kerala Rules, 1991 forselection and appointment was not in contradiction with the guidelinesHlaid down in Malik Mazhar Sultan (3) as this Court had noticed that

selections were to be made according to the existing judicial servicerules in the States/Union Territories. According to the Division Bench,the intent of Malik Mazhar Sultan (3) was not to interfere with statutoryrules, but only to lay down guidelines for expeditious filling up of judicialvacancies. The Division Bench held that the term ‘probable’ vacanciesin the notification inviting applications indicated that there was a possibilityof variance between the actual and advertised vacancies and theadvertised vacancies could be reduced or enhanced. Thus, vacancies inexcess 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 tothe directions of this Court in Malik Mazhar Sultan (3);and

(ii) Whether the respondents and similarly placed candidateswho find place in the merit list approved by the Governorcan be appointed to vacancies arising within one year fromthe date of approval of the merit list, in excess of thosespecified in the notification.

B. Submissions of the parties

10. Mr V Giri, learned senior counsel appearing on behalf of theappellant, has made the following submissions:

iRule 7(2) of the Kerala Rules, 1991 as amended in 2019, ifinterpreted to fill up all vacancies arising within one year ofits approval, would be inconsistent with the directions ofthis Court in Malik Mazhar Sultan (3); iiThe respondents cannot be appointed to vacancies arisingwithin one year from the date of approval of the merit listby the Governor, in excess of the vacancies notified; iiiIn Malik Mazhar Sultan (3), this Court directed that aftercompletion of the recruitment process, appointment lettersfor vacant posts are to be issued on 1December of everyrecruitment year and the last date of joining shall be 2Januaryof the following year. Thus, for every recruitment year thevacancies to be considered are as on 1December to enablethe appointees to join on 2 January of the following year; A

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AivThe direction contained in the order of this Court dated 4January 2007 in Malik Mazhar Sultan (3), which providedthat 10% of the posts shall be notified for vacancies thatmay arise due to elevation, death or otherwise, wassuperseded by this Court in a subsequent order dated 24March 2009. In the subsequent order, this Court providedBthat the High Courts shall notify the existing number ofvacancies and anticipated vacancies for the next one year.Thus, the vacancies notified for any selection year are thevacancies existing on 15 January of that year plus anticipatedvacancies for that year and a few vacancies which mayCarise due to death, resignation, promotion or otherwise; vRecruitment commenced for the year 2020 and includedthe vacancies existing at the beginning of the year andanticipated vacancies till 31 December 2020; viThe term ‘probable’ denotes addition or deduction to beDmade 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 hasbeen provided in Malik Mazhar Sultan (3); viiA literal interpretation of Rule 7(2) would lead to a violationEof Articles 14 and 16 as appointments would be made inexcess of the vacancies notified which is contrary to thedirections of this Court in Rakhi Ray v. High Court ofDelhi [(2010) 2 SCC 637]; Prem Singh & Ors v.Haryana State Electricity Board & Ors[(1996) 4 SCCF319]; and Bedanga Talukdar v. Saifudaullah Khan &Ors [(2011) 12 SCC 85]; and viiiA harmonious interpretation of the Kerala Rules, 1991 alongwith the directions of this Court in Malik Mazhar Sultan(3) would imply that vacancies arising in a recruitment yearGshould be filled up by the merit list in that year only andyearly selection must be conducted.

11. Opposing these submissions, Mr P S Patwalia, and Mr VChitambaresh, learned Senior Counsel and Ms Bina Madhavan, learnedCounsel appearing on behalf of the respondents contended that:

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iAbout fifty vacancies subsist after the appointments wereAissued on 7 May 2020 and forty-seven vacancies areadvertised in the notification dated 30 June 2020 forappointments for the year 2020; iiThe term ‘probable’ has been consciously deleted from thenotification for 2020, by the corrigendum issued on 30 JulyB2020 as the term ‘probable’ implies that the number ofvacancies is projected and not definite; iiiSelection and appointment to judicial posts has to beconducted strictly in adherence to existing judicial servicerules as held in Malik Mazhar Sultan; Rakhi Ray; and inHirandra Kumar v. High Court of Judicature atAllahabad (2019 SCC Online SC 254); C

ivThe amendment to Rule 7(2) of the Kerala Rules, 1991was made with specific reference to Malik Mazhar Sultan(3) and has been discussed in the impugned judgment; D

vThe amendment to Rule 7(2) mandates that the merit listapproved by the Governor is to remain in force for a periodof one year during which all vacancies which arise are tobe filled up from the merit list, or until a new list comes intoforce, whichever is earlier. This amendment is a significantdeparture from the previous rule which only mandated thatthe list remains in force for three years or until a fresh list isprepared and did not contemplate filling up of vacanciesarising after the approved list; E

viAppointments from a subsisting merit list can be madeagainst vacancies arising after the merit list is notified, asheld in Virender S

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Hooda v. State of Haryana[6];

viiThe Kerala Rules, 1991 have not been challenged asviolative of Articles 14 and 16 of the Constitution and theGHigh Court cannot contend that the its own rules violateArticles 14 and 16; 6 (1999) 3 SCC 696

AviiiThere has been an inordinate delay of over two years infilling up the judicial vacancies. In case the vacancies arenot filled up by using the merit list for Selection Year 2019,they will remain vacant till early 2023; and ixA harmonious interpretation of Rule 7(2) of the KeralaBRules, 1991 and the dictum in Malik Mazhar Sultan (3)would indicate that all vacancies existing on the date ofappointment must be filled up.

12. We will now consider the rival submissions.

C. Kerala Rules, 1991C

13. The Kerala Judicial Service Rules 1991[7]came into force witheffect from 1 January 1992. The Kerala Rules 1991 have been issuedunder the authority of the Governor of Kerala in exercise of powersconferred by Articles 234 and 235 of the Constitution and the provisionsof Section 2(1) of the Kerala Public Services Act 1968. The NotificationDby which they were issued, SRO No. 1621/91, terms them as “SpecialRules in respect of the Kerala Judicial Service”. Rule 3 specifies thatthe service shall consist of two categories:

“Category (I): Subordinate Judges I Chief Judicial Magistrates Category (2): Munsiff-Magistrate.”E

14. The Governor of the State is the appointing authority forcategory (2). Rule 5 provides that appointment to the post of MunsiffMagistrate shall be made by direct recruitment and by transfer in themanner provided in sub-Rule (3). Originally, Rule 7 in its unamendedform was cast in the following terms:F

“7. Preparation of lists of approved candidates and reservation ofappointments:

(1) The High Court of Kerala shall, from time to time, holdexaminations, written and oral, after notifying the probable numberGof vacancies likely to be filled up and prepare a list of candidatesconsidered suitable for appointment to category (2). The list shallbe prepared after following such procedure as the High Courtdeems fit and by following the rules relating to reservation of appointments contained in rules 14 to 17 of Part II of the KeralaState and Subordinate Services Rules, 1958.

(2) The list consisting of not more than double the number ofprobable vacancies notified shall be forwarded for the approvalof the Governor. The list approved by the Governor shall comeinto force from the date of the approval and shall remain in forcefor 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 holdexaminations “after notifying the probable number of vacancies likely tobe filled up”. Under Sub-rule (2), a list consisting of not more than doublethe number of probable vacancies notified had to be forwarded for theapproval of the Governor. The list approved by the Governor was toremain in force for a period of three years or until a fresh approved listis 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 theamendment, the last sentence of Rule 7(1) was substituted in the followingterms “5. The last sentence in Rule 7(1) be substituted by the following:- “The selection shall be on the basis of competitive examination attwo successive stages. At the first stage, a Preliminary screeningexamination is to be conducted to find out the true aspirants forthe posts and to make the Main examination more competitive. Inthe Preliminary examination, the ratio of 1:10 of the notifiedvacancies to the successful candidates be maintained. At thesecond stage, there shall be a Main examination consisting of awritten examination and a viva voce. The main (written)examination shall have four papers with 100 marks each at a totalof 400 marks, based on the syllabus prescribed by the High Courtfrom time to time. The number of candidates for the viva voceshall not ordinarily exceed three times of the notified vacancies.The maximum mark for viva voce shall be 50. The cut off mark inthe viva voce is 40% for the general and Other Backward Classcandidates and 35% for the SC/ST candidates. The merit list shallbe prepared on the basis of aggregate marks secured by thesuccessful candidates in the Main (written) examination and viva AB

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voce. For the preparation of the merit list and select list, rules 14to 17 of Part II of the Kerala State and Subordinate ServicesRules 1958 shall be followed.”

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Similarly Rule 7 (2) was substituted by the following provision:

“6. Rule 7(2) of the existing Rules be substituted by the following:- B

“(2) The merit list prepared by the High Court shall be forwardedfor the approval of the Governor. The list approved by the Governorshall come into force from the date of the approval and shall bevalid till the notified vacancies and the vacancies that may arisewithin one year from the date of approval of the list, are filled upCor a fresh list comes into force, whichever is earlier.”

17. As we have seen above, under the unamended Rule 7(2),there was a stipulation that a list approved by the Governor will remainin force for a period of three years or until a fresh list is prepared (thethree years stipulation had earlier been substituted by SRO 660/2006).DAs a result of the amendment which came into effect in 2019, it hasbeen stipulated that the list approved by the Governor shall be valid tillthe notified vacancies and the vacancies that may arise within one yearfrom the date of the approval of the list are filled up or a fresh list comesinto force, whichever is earlier.ED. Malik Mazhar Sultan (3)

18. The existence of unfilled vacancies in posts falling within thedistrict judiciary across the country has been considered by this Court inMalik Mazhar Sultan (3) v. U P Public Service Commission(“Malik Mazhar Sultan (3)”)[8]. In the judgment, which was deliveredFon 4 January 2007, comprehensive directions were issued in regard tothe mode of determining vacancies and the manner in which the selectionwould have to be conducted every year. The judgment of this Courtenvisages an annual exercise for selection to posts in the judicial serviceof each state. While issuing directions, the two judge Bench consistingof Chief Justice YK Sabharwal and Justice CK Thakker noted that nearlyGfive years had elapsed since the decision of this Court in All IndiaJudges’ Association v. Union of India[9] (“All India Judges’Association”). In the earlier decision, the Court had envisaged that 8 (2008) 17 SCC 703H9 (2002) 4 SCC 247

existing vacancies at all levels in the district judiciary should be filled, ifpossible, by 31 March 2003. Despite this aspiration, the backlog of judicialvacancies remained unfilled. The problem, as the Court perceived it,was that:

“1. It was about five years back that this Court directed thatexisting vacancies in the subordinate courts, at all levels, shouldbe filled, if possible, latest by 31-3-2003, in all the States. Thisdirection is contained in All India Judges Assn. (III) v. Union ofIndia [(2002) 4 SCC 247: 2002 SCC (L&S) 508]. It has beennoticed that an independent and efficient judicial system is one ofthe basic structure of our Constitution. If sufficient number ofJudges are not appointed, justice would not be available to thepeople thereby undermining the basic structure. The judicial systemhas been facing the problem arising out of delay in dispensation ofjustice for which one of the major causes is insufficient numberof Judges when compared to either the large number of casespending or in relation to the average Judge-population ratio goingby the number of Judges available in various other democraciesin the world [Ed.: See also Beating the Backlog: Less Talk, MoreActions by Dr. A.M. Singhvi, (2007) 2 SCC J-9]. In this light, itbecomes all the more necessary to take all possible steps to ensurethat vacancies in the courts are timely filled.”

While issuing these directions and the time schedule which mustbe adhered to in making judicial appointments for filling up vacancies,the Court dealt with the submission that its directions would impinge onthe role and functions of the Public Service Commissions which weretasked with judicial appointments in states. Dealing with the submission,the court observed that:

“5… it is necessary to note that selections are required to beconducted by the authorities concerned as per the existing JudicialService Rules in the respective States/Union Territories.”

19. This Court observed that progressively, a consensus wouldhave to be arrived at so that the selection process for appointments tothe district judiciary would be conducted by the High Courts or by thePublic Service Commission under the control and supervision of the HighCourts. The Court issued detailed directions specifying timelines forappointments of District Judges; Civil Judges (Senior Division) and Civil A

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AJudges (Junior Division). For appointment to the post of Civil Judge (JuniorDivision) by direct recruitment, the following time schedule was stipulatedin the judgment of this Court:

“7…

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20. All Chief Justices of the High Courts were directed to constitutecommittees to oversee the process of selection and appointment of judicial

officers and to set up a special cell within the High Court to look afterthe process. The judgment of this Court envisages that appointment letterswould be issued by the State Governments within a month of the receiptof the recommendations from the High Courts/State Public ServiceCommissions. Paragraph 15 of the judgment contains a further directionthat:

“15….ten per cent of unforeseen vacancies would be in respectof sanctioned posts and not vacancies occurring in a particularyear.”

21. While the Court granted liberty to the High Courts and to theGovernments of the States or, as the case may be, Union Territories toapply for a variation of the time schedule in the event of difficultiesarising due to peculiar geographical and climatic conditions and otherrelevant considerations, the time schedule which was indicated in thejudgment was directed to “be adhered to and appointments madeaccordingly” until it was varied.

22. In the State of Kerala, certain proceedings took place in relationto the selection and appointment of Munsiff Magistrates from the selectlist which was prepared in 2013. The notification for 2013 for selectionof Munsiff Magistrates was published after taking into account additionalposts of 30 Gram Nyaylayas and 27 Special Magistrate Courts. Pursuantto the notification, 66 candidates were selected. For selection in 2013,the appellant had notified 74 probable vacancies for general recruitmentand 7 for NCA. In calculating the 74 vacancies, the appellant took intoaccount the establishment of the above Gram Nyaylayas and MunsiffMagistrate’ Courts. A select list of 66 candidates was approved by theGovernor and on 31 October 2014 and 1 November 2014, all the 66candidates were appointed as Munsiff Magistrate trainees. It so happenedthat after the 74 vacancies were notified, 30 Gram Nyaylayas were notestablished as anticipated, as a result of which a reduction of 30anticipated vacancies occurred in the total number of notified vacancies.Apparently, 13 NCA slots were also required to be kept vacant.

23. The appellant moved this Court in IA 141/2015 for exemptingit for conducting the selection for 2014 and 2015 and for permission tofill up the vacancies of 2015 from the then existing 66 candidates withinthe 2013 selection. The IA came up before this Court together withreports filed by various High Courts on compliance with the Malik A

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AMazhar Sultan (3) directions. By an order dated 27 October 2015, thefollowing order was passed on the IA:

“I.A. No. 141 of 2015

After hearing learned Amicus Curiae and learned counsel for theHigh Court of Kerala, we are of the firm view that the prayer inBthe application cannot be granted.”

Accordingly, I.A. No. 141 of 2015 is dismissed.”

24. The appellant was directed to file an “appropriate status report/affidavit before this Court on or before 20 November 2015”. The pleaCof the appellant for exemption from conducting the annual selectionprocess, in light of the excess candidates in the previous years, wasfirmly rejected.

25. The significance of these events for the controversy in thepresent case lies in appreciating the submission of the appellant that theDrequirement of an annual selection process and adherence to the timelinesspecified has been considered to be sacrosanct by this Court. It was onthis basis that the application filed by the High Court for exempting itfrom carrying out a selection for 2014-15 was rejected.

26. The stand out feature which emerges from the judgment inMalik Mazhar Sultan (3) is that the object and purpose of this Court inEissuing the directions was to ensure that unfilled vacancies which continueto be the bane of the judicial system across the country would be filledup by adhering to fixed time-lines and by adopting an annual process forselection to judicial posts. It was with this object that detailed timelineswere spelt out in the decision. Punctilious compliance was sought, saveFand except where for exceptional reasons, an extension was granted bythis Court. Since the pronouncement of that decision, this Court hasconsistently monitored compliance across the country by all the HighCourts. Faced with an unfavorable judge to population ratio, the effortof this Court has been to ensure that at least the available posts in thedistrict judiciary are filled up.G

27. Another facet which needs to be mentioned at this stage isthat in the decision which was rendered on 4 January 2007 in MalikMazhar Sultan (3), this Court had directed that the number of vacanciesto be notified by the High Court for the annual selection would becalculated by including:H

(i) Existing vacancies;A

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

(iii) Future vacancies which may arise due to promotion, deathor otherwise “say 10 per cent of the number of posts”.

B

Existing vacancies are known. Vacancies arising due to retirementare also known, because the date of retirement is fixed by the date ofbirth, coupled with the age of retirement under service rules. The thirdcategory recognizes the imponderables of service: vacancies inevitablyarise due to promotion, death or resignation and such other factors whoseprecise number cannot be predicted in advance. In computing theprobable vacancies for the next year, the number of posts which mayfall vacant due to uncertain events such as death, resignation andpromotion cannot be determined with precision. Yet they have to betaken into account for the selection year. Hence, in the original judgment,this Court contemplated that about 10 per cent of the number of postswould cover contingencies of future vacancies arising due to “promotion,death or otherwise”. This category was dealt with in a subsequentdecision[10] which was rendered on 24 March 2009 by a three judge Benchpresided over by the learned Chief Justice KG Balakrishnan (as he wasthen). The precise reason for modifying the 10 per cent stipulation wasexplained in the order of this Court D

“2. It has been pointed out by the counsel appearing for the variousHigh Courts that 10 per cent of the sanctioned posts are notifiedin some States. A large number of posts are to be notified whereasthere was corresponding number of vacancies to be filled if thecandidates are selected in the select list. There may be anexpectation for such candidates to get appointment and thiscreates unwanted litigation by the candidates and it isprayed that the existing vacancies alone be notified alongwith the anticipated vacancies that may arise in the nextone year and some candidates also be included in the waitlist prepared by the High Courts/PSCs.”

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10 Malik Mazhar Sultan and anr. vs. Uttar Pradesh Public Service Commission & Ors.,(2009) 17 SCC 24

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AIn view of the above submission of the High Courts, this Courtmodified the earlier judgment in terms of the following directions:

“3. In supersession of the order passed by this Court on 4.1.2007,this Court directs that in future the High Courts/PSCs shallnotify the existing number of vacancies plus the anticipatedBvacancies for the next one year and some candidates alsobe included in the wait list. To this extent earlier order ismodified.”

28 Hence, in computing the vacancies to be notified annually byCthe High Court, the three factors to be borne in mind would be

(i) the existing number of vacancies;

(ii) the anticipated vacancies for the next year; and

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

DE. Committee of Judges: Kerala High Court

29. In the course of its judgment in the present case, the DivisionBench of the High Court has adverted to the report of its Committee ofJudges, which ultimately led to the amendment of the Kerala Rules 1991.Prior to the amendment, Rule 7(2) envisaged that the list which wasEapproved by the Governor would remain in force for a period of threeyears or until a fresh approved list is prepared, whichever is earlier.Bearing in mind the directions in Malik Mazhar Sultan (3), theCommittee of Judges opined in its report that:“20. It is further submitted that as per rule 7(2) of the KeralaFJudicial Service Rules, 1991, the list approved by the Governorshall come into force from the date of the approval and shall remainin force for a period of three years or until a fresh approved list isprepared, whichever is earlier. As per the directions in the MalikMazhar Sultan Case, the select list prepared for all categories ofGofficials shall be valid till the next select list is published. It is alsoheld therein that recruitment is to be conducted every year.

21. In view of the direction of the Hon’ble Supreme Court,the existing provision regarding the validity period of themerit list contained in rule 7 (2) is to be modified to the H

effect that the merit list shall be valid till the next selectlist is published”.”

(emphasis supplied)

The amendment of Rule 7(2) was notified. However, while doingso Rule 7(2) was couched in language which could mean that the existingselect list will cover the probable vacancies notified and in addition, thevacancies arising within a year of the approval of the Governor or till thenext select list is published, whichever is earlier.

F. Harmonizing Rule 7(2) of the Kerala Rules, 1991 withMalik Mazhar Sultan (3)

30. The appellant has essentially adopted a two–prongedsubmission in these proceedings. The first limb of the submissions is thatRule 7(2) has to be read together with the directions in Malik MazharSultan (3) which in its tabulated timelines set out in the order dated 4January 2007 provides the manner in which vacancies are to be notifiedannually on 15 January. The appellant emphasises that the directionregarding further vacancies that may arise due to promotion, death orotherwise, 10 per cent of the posts shall be notified was expresslysuperseded by the subsequent order dated 24 March 2009 by providingthat in future the High Courts could notify the existing number of vacanciesplus anticipated vacancies and some candidates would also be includedin the wait-list. On this basis, the appellant indicates that the breakup ofvacancies notified on 1 February 2019 comprised of

• Existing vacancies – 6 [including one PwD]

• Anticipated vacancies till 31.12.2019 - 27

• 10% vacancies added - 4

• Total vacancies notified - 37

According to the appellant, the merit list is to contain no morethan double the number of notified vacancies. Hence, the merit list for2019 contains 69 persons who alone were qualified. The appellant statesthat the select list was prepared after applying the rules of reservationscontained in Rules 14 to 17 of Part-II of the Kerala State and SubordinateServices Rules, 1958. The select list contained the names of 32 personsfor appointment against regular vacancies, after applying the rules ofreservation. The merit list did not contain persons who belonged to AB

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Aparticular reservation categories for 5 vacancies, which is why the selectlist contained 32 persons for appointment against regular vacancies and5 persons who were appointed against NCA vacancies carried overfrom the previous year. According to the appellant, Rule 7(2) as amendedwith effect from 14 January 2019 must be read in accordance withMalik Mazhar Sultan (3) which provides for an annual selection. ThisBsubmission of the appellant is that if Rule 7(2) is interpreted to mandatorilyoperationalize the approved list until the notified vacancies and thevacancies that may arise within one year from the date of approval ofthe list are filled up, or a fresh list comes into force whichever is earlier-would run contrary to the decision of this court in Malik Mazhar SultanC(3).

31. The second limb of the submissions of the appellant is that ifRule 7(2) is read in a literal manner, it would run afoul of Articles 14 and16 of the Constitution. Hence, the appellant submits that the rule shouldnot be interpreted in a manner that would render its validity open toDserious doubt. The appellant has commenced recruitment for selectionyear 2020 by a notification dated 30 June 2020. This notification includesthe vacancies existing at the beginning of 2020 plus vacancies anticipatedto arise till 31 December 2020 plus 10 per cent. What should rightlyform the subject matter of the selection year 2020 cannot, according tothe submission, be brought within the purview of selection year 2019.EThat is to say, vacancies which arise beyond 31 December 2019 (therecruitment year in question) are actually in excess of the notifiedvacancies for 2019. Vacancies which exist on the date of the notificationfor the year 2020 (to be computed as on 15 January 2020) and vacancieswhich arise till 31 December 2020 have to be notified for the selection Fyear 2020. Such vacancies cannot be filled up from the merit list for2019, as they have not- and could not, have been notified in 2019. This,in the submission of the appellant, is the only interpretation which wouldsubscribe to the principle of equality in matters of public employmentgoverned by Articles 14 and 16 of the Constitution. The appellant hasadopted the position that it is under a duty to abide by a process which isGfair, just and constitutionally compliant.

32. In the submission of the appellant, where a selection isconducted for notified vacancies and the select list is operated beyondthe notified vacancies which arise subsequent to the selection year, theconstitutionally guaranteed right of persons who become eligible duringH

the interregnum to be considered for appointment to the post of MunsiffMagistrate would be infringed. The word ‘probable’ denotes an additionor deduction to cover imponderables by way of the death of an incumbent,resignation or the appointment of an incumbent to a superior categoryby hierarchical promotion or otherwise. This category is provided for bythe addition of 10 per cent, as provided in Malik Mazhar Sultan (3).The appellant submits that on a literal construction of Rule 7(2), theaddition of vacancies which arise during selection year 2020 for thepurpose of operating the select list of 2019 would involve it in an infractionof Articles 14 and 16. Such a consequence, according to it, should beobviated by adopting a harmonized reading of Rule 7(2) with the principleswhich have been enunciated in Malik Mazhar Sultan (3).

33. Opposing the two-pronged submission of the appellant, therespondents have submitted that

(i) Rule 7(2) does not infringe the principles which wereenunciated in Malik Mazhar Sultan (3); and

(ii) There is no infraction of Articles 14 and 16 when thestatutory rules contemplate that the select list will beoperated for the vacancies which were notified as well asvacancies which arise within one year of the date of theapproval of the select list by the Governor or until a freshlist is drawn up, whichever is earlier.

34. While analyzing the two-pronged submission of the appellant,it must be noted at the outset that the Kerala Rules 1991 governappointments to the Kerala Judicial Service. The decision in MalikMazhar Sultan (3) recognizes that Judicial Service Rules prevail inevery State. Selections to the Judicial Service have to be conducted bythe authorities by adhering to the rules which have been framed in therespective States. The Kerala Rules 1991 trace their authority to both- aconstitutional and statutory power. SRO No. 1621/1991 by which theRules were issued makes this clear in its prefatory recital:

“S.R.O. No. 1621/91: - In exercise of the powers conferred byArticles 234 and 235 of the Constitution of India and sub-section(1) of section 2 of the Kerala Public Services Act, 1968 (19 of1968) and in supersession of all the existing rules on the subject,the Governor of Kerala hereby makes the following Special Rulesin respect of the Kerala Judicial Service…”

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AThe decision in Malik Mazhar Sultan (3) notices that “selectionsare required to be conducted by the authorities concerned as per theexisting Judicial Service Rules in the respective States/Union Territories.Emphasizing this, the judgment of the Court specifically dealt with theobjection that the constitution of Selection Committees by the ChiefJustices of the High Court to monitor the timely appointment of judges inBthe district judiciary at all levels would amount to an inference with theindependent functioning of the Public Service Commissions. The Courtheld that the apprehension was “wholly misplaced”, “in view of whatwe have already noted about the appointments to be made in accordancewith the respective Judicial Services Rules in the States”[11]. The decisionCin Malik Mazhar Sultan (3) was intended to deal with a specific problemnamely, unfilled judicial vacancies in the district judiciary. The solutionthat was envisaged was in terms of a regulated process governed byspecific timelines under which an annual exercise would be carried outfor filling up the posts. Article 234 of the Constitution provides that:

D“234. Appointments of persons other than district judges to thejudicial service of a State shall be made by the Governor of theState in accordance with rules made by him in that behalf afterconsultation with the State Public Service Commission and withthe High Court exercising jurisdiction in relation to such State.”

EArticle 235[12] vests in the High Court control over district courtsand courts subordinate thereto including the posting and promotion of,and the grant of leave to, persons belonging to the judicial service of aState. The High Court’s rules governing the appointment of personsother than district judges to the judicial service of a State haveconstitutional authority whose source originates in Article 234. TheFrecognition in Malik Mazhar Sultan (3) of the legal position thatselections have to take place in accordance with existing Judicial ServiceRules in the States, or as the case may be, Union Territories is hence inaccordance with the mandate of Article 234.

11 (2008) 17 SCC 703, at pages 75-76, paras 5-6G12 “The control over district courts and courts subordinate thereto including the postingand promotion of, and the grant of leave to, persons belonging to the judicial service ofa State and holding any post inferior to the post of district judge shall be vested in theHigh Court, but nothing in this article shall be construed as taking away from any suchperson any right of appeal which he may have under the law regulating the conditionsof his service or as authorising the High Court to deal with him otherwise than inHaccordance with the conditions of his service prescribed under such law.”

35. In two subsequent decisions of this Court, we find a reiterationof the principle imparting sanctity to the Rules governing the judicialservice in the States. The three judge Bench decision in Rakhi Ray v.High Court of Delhi[13] (“Rakhi Ray”) involved a situation where theHigh Court had issued an advertisement for filling up 20 vacancies in thecadre of District Judge of which 13 were to be drawn from the generalcategory, 3 from the Scheduled Castes and 4 from the Scheduled Tribes.All the 13 vacancies in the general category were filled up according tothe merit list and the appellants who ranked below the selected candidateswere not appointed. Some of the unsuccessful candidates moved theDelhi High Court with the submission that the vacancies which aroseduring the pendency of the selection process could also have been filledup from the select list in view of the decision in Malik Mazhar Sultan(3). This Court observed, following its earlier decisions in All IndiaJudges’ Association and Malik Mazhar Sultan (3) that “selectionwas to be made as per the existing Rules”[14] and that “appointmentshave to be made giving strict adherence to the existing statutoryprovisions”[15]. Dr Justice BS Chauhan, speaking for the three judgeBench, held that appointments have to be made in view of the provisionsof the Delhi Higher Judicial Service Rules 1970 which “provide foradvertisement of the vacancies after being determined”. Moreover, “thereservation policy is to be implemented, the number of vacancies to befilled up has to be determined”, failing which it would not be possible toimplement the reservation policy at all. Consequently, the Court heldthat there was no question of taking into consideration the anticipatedvacancies as per the judgment in Malik Mazhar Sultan (3). Since theanticipated vacancies have not been determined in view of the existingstatutory rules, and they could not be taken into consideration:

“21. The appointments had to be made in view of the provisionsof the Delhi Higher Judicial Service Rules, 1970. The said Rulesprovide for advertisement of the vacancies after being determined.The Rules further provide for implementation of reservationpolicies in favour of Scheduled Castes, Scheduled Tribes and OtherBackward Classes. As the reservation policy is to be implemented,the number of vacancies to be filled up is to be determined, 13 (2010) 2 SCC 63714 At page 644, para 18

15 at page 645, para 20

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Aotherwise it would not be possible to implement the reservationpolicy at all. Thus, in view of the above, the question of taking intoconsideration the anticipated vacancies, as per the judgmentin Malik Mazhar Sultan (3) case [(2008) 17 SCC 703: (2007) 2Scale 159] , which had not been determined in view of the existingstatutory rules could not arise.

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22. In view of the above, we do not find any force in the submissionsthat the High Court could have filled vacancies over and abovethe vacancies advertised on 19-5-2007, as per the directions issuedby this Court in Malik Mazhar Sultan (3) case [(2008) 17 SCC703 : (2007) 2 Scale 159] .”C

36. Rakhi Ray involved a situation where candidates who werenot successful in seeking appointment to the vacancies which wereadvertised, attempted to gain appointment as District Judges by theinclusion of additional vacancies, over and above those which werenotified. This court turned down the request, holding that such a courseDof action was not permissible, both in terms of the judicial service rulesand the mandate of Articles 14 and 16 (the latter aspect will be exploreda little later in this judgment).

37. The next decision which needs to be referred to at this stageis Hirandra Kumar v. High Court of Judicature at Allahabad[16]E(“Hirandra Kumar”). Hirandra Kumar involved a situation underthe rules governing the UP Judicial Service, where a minimum andmaximum age limit could be relaxed in the case of SC/ST candidates.The age limit was prescribed with reference to the first day of Januaryof the year following the year in which the notice inviting applications isFpublished. Before this Court, the submission of the appellants was thatbased on the decision in Malik Mazhar Sultan (3), a candidate whoapplies for recruitment to the Higher Judicial Service may be grantedage relaxation since the candidate has crossed the prescribed age limitbetween the last date of recruitment and the current. Rejecting thissubmission, the Court, speaking through one of us (Dr Justice DYGChandrachud) held:

“16. Under Rule 12, a minimum age criterion of 35 years and amaximum age limit of 45 years is stipulated which is relaxable bythree years for Scheduled Caste and Scheduled Tribe candidates.

H16 2019 SCC Online SC 254

The age limit is prescribed with reference to the first day ofJanuary of the year which follows the year in which the noticeinviting applications is published.

17. The submission which was urged on behalf of the petitionersis based on the decision of this Court in Malik MazharSultan (supra). While formulating a time schedule for the fillingup of vacancies both in the Higher Judicial Service and at allother levels in the district judiciary, this Court was cognizant ofthe fact that recruitment rules are in operation in all the Statesand Union Territories. Bearing this in mind, this Court observed:

“5. Before we issue general directions and the time scheduleto be adhered to for filling vacancies that may arise insubordinate courts and District Courts, it is necessary to notethat selections are required to be conducted by the authoritiesconcerned as per the existing Judicial Service Rules in therespective States/Union Territories. We may, however, notethat, progressively, the authorities concerned would consider,discuss and eventually may arrive at a consensus that theselection process be conducted by the High Court itself or bythe Public Service Commission under the control and supervisionof the High Court.”

18. The directions which have been issued in Malik MazharSultan (supra) are being monitored by this Court. The AllahabadHigh Court has been submitting progressive reports which aremonitored by this Court for compliance. The purpose of thedirections in Malik Mazhar Sultan (supra) was to ensure thatvacancies in the district judiciary are not left unfilled over longperiods of time, undermining the efficacy of the judicial system.Equally, the Court was cognizant of the fact that each High Courthas its recruitment rules. It is in view of that background that thegeneral implementation of the directions which have been issuedis being continuously monitored.

19. The real issue is as to whether the decision in Malik MazharSultan (supra) can be construed as leading to a vested right in acandidate who applies for recruitment to the HJS to assert thatthey may be granted an age relaxation by virtue of the fact thatbetween the last date of recruitment and the current, the candidatehas crossed the prescribed age limit.

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A20. The directions in Malik Mazhar Sultan (supra) are intendedto address the issue of vacancies in the district judiciary. Thosedirections do not override the prevailing rules which governselections to the HJS in the States and the Union Territories nordo they create an enforceable right in any candidate for selectionor to assert a right to age relaxation in violation of the rules. SoBlong as the rules hold the field, a candidate in order to be eligible,must fulfil the requirements of age and other conditions which areprescribed by the Rules.”

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38. In Rakhi Ray, the submission which did not find acceptancewas that anticipated vacancies should be considered over and above theCvacancies which were notified in the advertisement for makingappointments. In Hirandra Kumar candidates who sought an agerelaxation on the ground that they had crossed the age limit after the lastrecruitment met with a similar fate, with this Court holding that compliancewith the age limit prescribed in the Judicial Services Rules cannot beDobviated. We are thus unable to subscribe to the wider submission of theappellant that the directions in Malik Mazhar Sultan (3) will prevailover the provisions contained in Rule 7(2). A better line of approach is toseek an interpretation which will bring harmony between them.

G. Harmonizing Rule 7(2) of the Kerala Rules, 1991 withEArticles 14 and 16 of the Indian Constitution

39. The second limb of the submissions urged by the appellantnow requires analysis. The appellant has asserted that reading theprovisions of Rule 7(2) in a literal context would involve, as Mr V Giri,learned Senior Counsel submitted “a frontal assault” on the provisionsof Articles 14 and 16 of the Constitution. In fairness to the learned SeniorFCounsel, it is necessary to record that it is not the submission of theappellant that Rule 7(2) is invalid. The submission is that it must beinterpreted in a manner that will save the rule from a challenge that itviolates the principle of equality of opportunity in matters of publicemployment. Essentially, the submission is based on the fundamentalGprecept that where a public authority notifies a determined number ofvacancies for recruitment, appointments to posts covered by thenotification cannot be in excess of the vacancies that are notified. Thesubmission is that if the select list of 2019 is operated by filling upvacancies which arise for 2020, this will seriously erode the rights of H

candidates who become eligible in 2020, since this will result in acorresponding reduction of vacancies for the later year.

40. In order to analyze the issue, it becomes necessary to advertto the line of precedent through which the constitutional principle hasemerged. In Prem Singh v. Haryana State Electricity Board[17], basedon the advertisement dated 2 November 1991, the Board decided to fillup 62 vacant posts of Junior Engineer by direct recruitment, 15 postswere reserved for SC and ST candidates, 6 for Backward Classes and9 for ex-servicemen. The Selection Committee selected 212 candidatesand recommended the names. The Board, considering the latest vacancyposition as on 11 February 1993, decided to fill up 147 posts. Two questionsfell for determination by this Court:

(i) Whether it was open to the Board to prepare the list of 212candidates and to appoint 137 out of that list when thenumber of posts advertised was only 62; and

(ii) Whether the appellant was justified in quashing the selectionof all 212 candidates and appointments of 137 persons.

After adverting to the precedent on the subject[18], Justice GTNanavati speaking for Bench of two judges held:

“25…the selection process by way of requisition andadvertisement can be started for clear vacancies and alsofor anticipated vacancies but not for future vacancies. Ifthe requisition and advertisement are for a certain numberof posts only the State cannot make more appointmentsthan the number of posts advertised, even though it mighthave prepared a select list of more candidates. The Statecan deviate from the advertisement and make appointmentson posts falling vacant thereafter in exceptionalcircumstances only or in an emergent situation and that 17 (1996) 4 SCC 319

18 Subhash Chander Sharma v. State of Haryana: (1984) 1 SLR 165 (P&H); AshokKumar Yadav v. State of Haryana: (1985) 5 SCC 417 : 1986 SCC (L&S) 88: 1985 Supp(1) SCR 657; A V Bhogeshwarudu v. A.P. Public Service Commission: JT (1989) 4 SC130: (1990) 1 LLN 6: (1989) 59 FLR 749 (SC); Hoshiar Singh v. State of Haryana: 1993Supp (4) SCC 377:1994 SCC (L&S) 249: (1994) 26 ATC 325; State of Bihar v. SecretariatAsstt. Successful Examinees’ Union 1986: (1994) 1 SCC 126: 1994 SCC (L&S) 274;Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat: 1994 Supp (2) SCC591: 1994 SCC (L&S) 1159

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Atoo by taking a policy decision in that behalf. Even whenfilling up of more posts than advertised is challenged the courtmay not, while exercising its extraordinary jurisdiction, invalidatethe excess appointments and may mould the relief in such a manneras to strike a just balance between the interest of the State andthe interest of persons seeking public employment. What reliefBshould be granted in such cases would depend upon the facts andcircumstances of each case.”

The Court held that since the selection process was initiated forC62 clear vacancies and, at that time anticipated vacancies were not takeninto account, the Board was not justified in making more than 62appointments. But the Board could have taken into account not only theactual vacancies but also vacancies which were likely to arise becauseof “retirement etc” by the time the selection process was completed.This Court held that it would not be equitable to invalidate all theDappointments made on posts in excess of 62. However, appointmentswhich were made against future vacancies – in this case on newly createdposts, would have to be held to be invalid. While moulding the relief, thisCourt observed that 13 posts had become vacant because of retirementand 12 posts because of deaths. The vacancies which were likely toEarise as a result of retirement could have been reasonably anticipatedand the Board had due to oversight not taken them into considerationwhile a requisition was made for filling up 62 posts. As regards the postswhich fell vacant due to deaths, this Court taking what it described as a“lenient view” did not quash the appointments made against them. Hence,appointments made by the Board on posts beyond 87 (the original 62Fposts for which selection was advertised and the 25 additional postswhich fell vacant during selection process due to deaths and retirement)were invalidated.

41. The decision in Rakhi Ray which is by a Bench of threelearned judges has been adverted to in a different context earlier. In thatGcase, as we have noticed, the High Court had notified an advertisementto fill up 20 vacancies in the cadre of District Judge. All the 13 vacanciesin the general category were filled up according to the merit list.Unsuccessful candidates belonging to the general category howeverasserted that additional vacancies which came up during the pendencyHof the selection process should also be filled up from the same select list.

In this context, while analyzing the constitutional requirements of Article14 and Article 16, Dr Justice BS Chauhan, speaking for the three judgeBench, observed:

“7. It is a settled legal proposition that vacancies cannot befilled up over and above the number of vacancies advertisedas “the recruitment of the candidates in excess of thenotified vacancies is a denial and deprivation of theconstitutional right under Article 14 read with Article 16(1)of the Constitution”, of those persons who acquiredeligibility for the post in question in accordance with thestatutory rules subsequent to the date of notification ofvacancies. Filling up the vacancies over the notifiedvacancies is neither permissible nor desirable, for thereason, that it amounts to “improper exercise of power andonly in a rare and exceptional circumstance and in emergentsituation, such a rule can be deviated from and such adeviation is permissible only after adopting policy decisionbased on some rationale”, otherwise the exercise wouldbe arbitrary. Filling up of vacancies over the notifiedvacancies amounts to filling up of future vacancies and thus,is not permissible in law. (Vide Union of India v. Ishwar SinghKhatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21ATC 851], Gujarat State Dy. Executive Engineers’ Assn. v. Stateof Gujarat [1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 :(1994) 28 ATC 78], State of Bihar v. Secretariat Asstt. SuccessfulExaminees Union 1986 [(1994) 1 SCC 126 : 1994 SCC (L&S)274 : (1994) 26 ATC 500 : AIR 1994 SC 736] , PremSingh v. Haryana SEB [(1996) 4 SCC 319 : 1996 SCC (L&S)934] and Ashok Kumar v. Banking Service RecruitmentBoard [(1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996) 32ATC 235 : AIR 1996 SC 976] .)”

In the view of the Court:

“12. In view of above, the law can be summarised to theeffect that any appointment made beyond the number ofvacancies advertised is without jurisdiction, being violativeof Articles 14 and 16(1) of the Constitution of India, thus, a ABC

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Anullity, inexecutable and unenforceable in law. In case thevacancies notified stand filled up, the process of selectioncomes to an end. Waiting list, etc. cannot be used as areservoir, to fill up the vacancy which comes into existenceafter the issuance of notification/advertisement. Theunexhausted select list/waiting list becomes meaningless andBcannot be pressed in service any more.”

In Bedanga Talukdar v. Saifudaullah Khan[19], another two judgeBench of this Court consisting of Justice Altamas Kabir and Justice SSCNijjar held:

“29…In our opinion, it is too well settled to need any furtherreiteration that all appointments to public office have to be madein conformity with Article 14 of the Constitution of India. In otherwords, there must be no arbitrariness resulting from any undueDfavour being shown to any candidate. Therefore, the selectionprocess has to be conducted strictly in accordance with thestipulated selection procedure. Consequently, when a particularschedule is mentioned in an advertisement, the same has to bescrupulously maintained. There cannot be any relaxation in theterms and conditions of the advertisement unless such a power isEspecifically reserved. Such a power could be reserved in therelevant statutory rules. Even if power of relaxation is provided inthe rules, it must still be mentioned in the advertisement. In theabsence of such power in the rules, it could still be provided in theadvertisement. However, the power of relaxation, if exercised,Fhas to be given due publicity. This would be necessary to ensurethat those candidates who become eligible due to the relaxation,are afforded an equal opportunity to apply and compete. Relaxationof any condition in advertisement without due publication wouldbe contrary to the mandate of equality contained in Articles 14and 16 of the Constitution of India.”G

42. The decision in Prem Singh has been followed by a Bench oftwo learned judges in Anurag Kumar Singh v. State of Uttarakhand[20].In that case, the Public Service Commission advertised 38 posts of 19 (2011) 12 SCC 85H20 (2016) 9 SCC 426

Assistant Prosecuting Officers for a year of recruitment comprising of12 months commencing from first day of July of the calendar year. ThePublic Service Commission however, held a selection for 74 posts, 37additional posts having been created subsequently. The High Court setaside the action, holding that the selection pursuant to an advertisementcan only be for clear vacancies and anticipated vacancies, but not forfuture vacancies. Justice L Nageswara Rao, speaking for the Bench oftwo learned judges of this Court, observed that the rules referred only tothe recruitment year. The Bench observed that “only the number ofvacancies that are advertised can be filled up” and if the advertisementgives liberty to the Government to vary the number of posts this powercould not be exercised for filling up future vacancies. The Court heldthat during the pendency of the proceedings a large number of personswould have become eligible for selection to the posts which wereadvertised and their right to be considered for appointment wasguaranteed by Articles 14 and 16 of the Constitution. In the view of theCourt, there would be an infraction of such a right if the additional postsare not filled up by a fresh selection. Hence the Court held that theselection pursuant to the advertisement should be confined only to theposts that were advertised and the additional posts which were createdafter the expiry of the recruitment year would have to be filled up by theissuance of an advertisement afresh.

43. A more recent decision in Rahul Dutta v. State of Bihar[21]related to the post of Civil Judge (Junior Division). Rule 5(A)-(3) of theBihar Civil Service (Judicial Branch) (Recruitment) Rules 1955 stipulatedthat:

“(3) Eligible candidates for the written examination shall be selectedon the basis of the result of the Preliminary Test, to the extent of10% of the total number of appeared candidates, rounded off tothe nearest hundred; and all candidates obtaining equal marks asthe last candidate’s shall also qualify for the written examination;”

The Rule provided that only 10 per cent of the total number ofcandidates who appeared at the preliminary test were to be called forthe written examination rounded off to the nearest hundred. The Courtheld that this stipulation in Rule 5A was contrary to the decision in MalikMazhar Sultan (3). Moreover, the determination of 10 per cent of the ABC

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Atotal number of candidates who had appeared in the preliminaryexamination for being called for the final written examination wasarbitrary and unreasonable, particularly, in view of the ratio of 1:10prescribed in Malik Mazhar Sultan (3). The restriction of candidatesto 10 per cent of those who had appeared at the preliminary test washeld to curtail the competitive field unreasonably.B

44. Having considered each of these judgments, we must noticethat all of them involve factual situations which may not be identical withthe facts of the present case. Precedent does not always rest on allfours. We have noticed earlier that, in the present case, the High Courtwhile issuing its advertisement for recruitment specified 37 as a ‘probable’Cnumber of vacancies. The meaning which must be attributed to theexpression ‘probable’ will be considered shortly hereafter. At this stagewe must recapitulate some of the salient aspects of the decisions whichwe have cited above. In Prem Singh the advertisement which wasissued by the Haryana State Electricity Board was for filling up 62 vacantDposts of Junior Engineers while as many as 138 candidates came to beappointed. In this backdrop this Court held that it was not open to theBoard to travelbeyond clear and anticipated vacancies. In other words,while clear and anticipated vacancies could be taken into considerationwhile issuing an advertisement for commencing the selection process,future vacancies could not be considered. While moulding the relief, thisECourt maintained the selection for the 62 vacancies which wereadvertised and 25 additional vacancies which arose during the selectionprocess due to promotions and deaths, but not beyond that. The decisionin Rakhi Ray involved a situation whether the High Court had advertised20 vacancies of District Judges of which 13 were in the general categoryFall of which were filled up. This Court rejected the contention of thoseamong the general category candidates whose position in the merit listwas below the 13 selected candidates that they were entitled to selectionon the basis of the vacancies which occurred during the pendency of theselection process, based on Malik Mazhar Sultan (3). This Court held that vacancies over and above those which were notified could not beGfilled up, save and except in a rare and exceptional situation. Absent anexceptional situation an exercise to fill up vacancies over and abovethose which were notified would be arbitrary. The decision in AnuragKumar Singh involved a requisition by the State of Uttarakhand to thePublic Service Commission for selection of 38 Assistant ProsecutingH

Officers. Despite the advertisement which was for filling up 38 posts,an additional 37 posts were sought to be filled up which had been createdsubsequently. This was held to be impermissible, as violating theguarantees of Articles 14 and 16. The decision in Rahul Dutta of twojudges has held that restricting the field of a written examination to 10per cent of the candidates who appeared at the preliminary examinationis violative of the dictum in Malik Mazhar Sultan (3) besides beingarbitrary on the ground that it unreasonably restricts the field ofcompetition.

45. The constitutional principle which finds recognition in theprecedents of this Court is that the process of selection in makingappointments to public posts is subject to the guarantees of equality underArticle 14 and of equality in matters of public employment under Article16. The process of selection must comport with the principles ofreasonableness. Where the authority which makes a selection advertisesa specific number of posts, the process of selection cannot ordinarilyexceed the number of posts which have been advertised. While notifyinga process for appointment, the authority may take into consideration theactual and anticipated vacancies but not future vacancies. Anticipatedvacancies are the vacancies which can be reasonably contemplated toarise due to the normal exigencies of service such as promotion,resignation or death. Hence, in notifying a given number of posts forappointment, the public authority may legitimately take into account thenumber of vacancies which exist on the date of the notification andvacancies which can reasonably be accepted to arise in the exigenciesof the service. While the exact number of posts which may fall vacantdue to circumstances such as promotion, resignation or death may bedifficult to precisely determine the authority may make a reasonableassessment 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 cannotbe treated as anticipated vacancies of a previous selection year. Vacancieswhich would arise outside the fold of the recruitment year would not fallwithin the ambit of anticipated vacancies. For it is only the vacancies,actual and anticipated which would fall within the course of the selectionor recruitment year that can be notified when the selection process isinitiated. These are constitutional principles to which statutory edicts aresubordinate.

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AH. Factual Analysis and Conclusion

46. In the present case, the essential aspect on which we need todwell is the meaning of the expression “probable”, in the context of Rule7(1). The essence of the present case will depend upon the manner inwhich the statutory rules are interpreted. That indeed is the central taskBin deciding the appeal. Intrinsic to the process of interpreting the rules isthe meaning which is to be ascribed to the expression “the probablenumber of vacancies”. Rule 7(1) requires the appellant to first notify“the probable number of vacancies” likely to be filled up and thereafter,to hold examinations both written and oral. The selection process resultsin the preparation of a list of candidates considered suitable forCappointment as Munsiff-Magistrates. Sub-rule (2) of Rule 7 stipulatesthat a list of not more than double the number of “probable vacanciesnotified” has to be forwarded for the approval of the Governor. As itstood after its amendment in 2006, the second sentence of Sub-rule (2)provided a term of validity for the list which is approved by the Governor.This was to be three years or until a fresh approved list is prepared,Dwhichever takes place earlier. By the amendment to the Rules on 19January 2019, the last sentence of sub-Rule (1) has been substituted andsub- Rule (2) has been substituted in its entirety. Sub-Rule (1) prior to itsamendment did not specify the modalities for holding the competitiveexaminations. Following the amendment, Rule 7(1) stipulates that theselection is a two-stage process, on the basis of a competitive examination.EThe first stage consists of a preliminary screening examination. In thepreliminary examination, a ratio of 1:10 of the “notified vacancies to thesuccessful candidates is to be maintained”. The object is to ensure abroad and competitive field of candidates who will be called for thesecond stage of the main examination. The main examination consistsof a written examination and viva voce; the former consisting of fourFpapers each with 100 marks based on a prescribed syllabus. The numberof candidates for the viva voce is not to ordinarily exceed three times“the notified vacancies”. A cut off in the viva voce is provided for generalcandidates and OBC candidates (40%) and SC/ST candidates (35%). Amerit list is then prepared on the basis of aggregate marks secured byGcandidates in the main written examination and the viva voce. In preparingthe merit list and select list, Rules 14 to 17 of Part II of Kerala SubordinateService Rules 1958 have to be observed.

47. After its amendment in 2019, Rule 7(1) as it stands speaks inthe first instance of the notification of “the probable number of vacancieslikely to be filled up”. Rule 7(1) also refers to “notified vacancies” inH

two places, the first in the context of maintaining the ratio between thevacancies which are notified and successful candidates while the secondrefers to the proportion between the notified vacancies and the numberof candidates called for the viva voce. Now sub-Rule (2) of Rule 7which has been substituted in its entirety as a result of the amendmentprovides the tenure over which the merit list which has been approvedby the Governor would be valid. As we have seen, before its amendment,sub-Rule (2) of Rule 7 provided for a tenure for the list approved by theGovernor for a period of three years or until a fresh approved list isprepared whichever is earlier. This tenure is now modified by theamendment brought about by the substitution of Rule 7(2). The modifiedtenure for the list approved by the Governor indicates that the list will bevalid “till the notified vacancies and vacancies that may arise within oneyear from the date of approval of the list” are filled up or a fresh listcomes into force, whichever is earlier. Thus, we find that the expression‘notified vacancies’ which has been used at two places in sub-Rule (1)of Rule 7 finds a presence also in substituted Rule 7(2). Now what ismaterial to note is that it is Rule 7(1) which provides for the initialnotification by which a probable number of vacancies is notified. The‘notified vacancies’ also determine the ratio of 1:10 in the preliminaryexamination and the number of candidates called for the interview. Sub-Rule (2) of Rule 7 does not have any bearing on the notification of thevacancies under Sub-rule (1) but it provides for the period of time overwhich the list approved by the Governor is to remain valid.

48. The Kerala Rules 1991 preceded the judgment in MalikMazhar Sultan (3). The amendment which came into force on 19January 2019 is evidently after the decision of this Court. The effort, asa matter of statutory interpretation, must be to harmonize the directionswhich were issued by this Court in Malik Mazhar Sultan (3) whichare relatable to the jurisdiction of this Court under Article 142 of theConstitution and the statutory rules. Undoubtedly, this Court has noticedin that decision that there were rules in force in the States and the UnionTerritories governing the selection to their judicial service. While issuingdirections in regard to the maintenance of timelines and for the modalitiesto be followed in an annual selection, this Court clarified that this wouldnot impinge upon the independence of the Public Service Commission orthe role of the High Courts in the States. In the subsequent decisions inRakhi Ray and Hirandra Kumar, this Court has specifically negativedthe attempts made by candidates that did not qualify in terms of the rules ABC

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Agoverning selection to the judicial service to seek appointment merely onthe basis of the observations in Malik Mazhar Sultan (3). Rakhi Rayinvolved a situation where candidates who did not qualify for the notifiedvacancies of District Judge in Delhi claimed appointment on the basis ofthe vacancies which had arisen during the process of selection. Theirplea was turned down on the ground that once vacancies have beenBnotified, no candidate could seek appointment beyond the extent of thevacancies which were advertised. Hirandra Kumar was a decision ofthis Court where candidates for the higher judicial service examinationclaimed an exemption from the age limit set out in the State JudicialService Rules on the ground that after the date of the last examinationCfor recruitment, they had become age barred. This effort was againnegatived by the decision of this Court which held candidates down tothe requirement of complying with the rules and selection process of theState Judicial Service. These two decisions would indicate that a candidatewho does not qualify in terms of the judicial service rules prevailing inthe State (or Union Territory) cannot seek a mandamus which is foundedDon a breach of the rules. The observation in Rakhi Ray and HirandraKumar that the decision in Malik Mazhar Sultan (3) did not overridethe State Judicial Service Rules must therefore be construed in anappropriate sense. The object and purpose of this Court in the decisionin Malik Mazhar Sultan (3) was to ensure the expeditious filling up ofEjudicial vacancies in the State Judicial Services. It was in this perspective,that the Court set down strict timelines for compliance. At the sametime, it is evident that the decision did not provide for other essentialaspects such as eligibility, modalities for conducting the examination andthe application of reservations in making appointments to state judicialservices. Hence, a significant field in regard to the process of selectionFand appointments to the judicial services is not covered by the decisionin Malik Mazhar Sultan (3) for which one has to fall back uponconstruing the rules governing the state judicial service in question. Buta stand out feature which emerges from the decision in Malik MazharSultan (3) must equally be emphasized. The judgment of this CourtGenunciates, in no uncertain terms, that the process of selection to thestate judicial services has to take place on an annual basis. As the orderspassed by this Court on the IAs by the appellant indicate, the requirementof yearly selection does not ordinarily brook exception. The court howeverreserved to itself the power to exempt in a given situation a State orUnion Territory from compliance with the time schedule or extend timeH

where peculiar local conditions require the grant of such an exemptionor extension. The significant aspect of the decision in Malik MazharSultan (3) is that the recruitment process is initiated each year with anotification of vacancies by the appellant and culminates in theappointment of candidates and their joining service. Once the process ofselection is annual, the notification of probable or anticipated vacancieshas to be for the selection year. The expression ‘probable’ means whatis anticipated, expected and likely. The expression thus comprehendsthe existing vacancies and those which are anticipated due to retirement,promotion, death or resignation and to which some vacancies can beadded to incorporate imponderable events during the recruitment process.In construing the rules by the State Judicial Service, more particularlythe process of notifying the probable vacancies, an effort must be madeto harmonize the rules with the object, intent and purpose underlying thedirections that were issued under Article 142 in Malik Mazhar Sultan(3). This exercise becomes necessary for another reason. In the presentcase, Rule 7(1) refers to “notifying the probable number of vacancieslikely to be filled up”. However, Rule 7(1) does not expressly indicatewhat is meant by this expression. The ambit of that phrase should receivecontent and meaning based on what was envisioned in Malik MazharSultan (3). The decision of this Court indicates that by 15 January everyyear the number of vacancies is to be notified by the appellant. Themanner in which the vacancies are to be calculated is also stipulated. Inmaking appointments to the post of Civil Judge (Junior Division) by directrecruitment the vacancies are to be calculated by including (a)Existing vacancies; (b)Future vacancies that may arise within one year due toretirement; and

(c) Future vacancies that may arise due to promotion, death orotherwise.

Originally, in the judgment of this Court dated 4 January 2007, thethird category [(c) above] was to consist of “say 10 per cent of thenumber of posts”. Subsequently, by the order dated 24 March 2009, thestipulation was varied as a consequence of which, it has been envisionedthat in future the High Courts/Public Service Commissions “shall notifythe existing number of vacancies plus the anticipated vacancies for thenext one year and some candidates also to be included in the wait-list”.

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AThe existing number of vacancies is an objective fact which is known tothe particular High Court. Anticipated vacancies are those which ariseas a part of the normal exigencies of service in the ensuing year due tofactors such as promotion, death or resignation from service. Theseexigencies are normal to a service but these vacancies are difficult topredict with precision. In the original order dated 4 January 2007 inBMalik Mazhar Sultan (3) category (b) consisting of “future vacanciesthat may arise within one year” was qualified by the expression “due toretirement”. Retirements are known as an objective factor since thedate on which a candidate appointed to judicial service would attain theage of superannuation is known in advance. Category (c) consisting ofCfuture vacancies referred to those which may arise due to promotion,death or otherwise, the exact number being somewhat in the realm of animponderable future event. As a result of the modification which hasbeen brought about by the order of this Court dated 24 March 2009, thefirst category of existing vacancies is maintained as it is. The secondcategory consists of anticipated vacancies “for the next one year”. ThisDcategory would incorporate vacancies which were likely to arise onaccount of retirement as well as those which may be anticipated in theordinary course due to the exigencies of service such as promotion,resignation or death of candidates within the service. Significantly, thelast category incorporates the principle that “some candidates also beEincluded in the wait-list”. The inclusion of some candidates in the wait-list is to ensure the availability of candidates in the event that additionalvacancies occur during the course of the year due to the exigencies ofservice. But significantly, the entire process which is contemplated bythe decision in Malik Mazhar Sultan (3) is an annual process. Hence,the vacancies which are to be notified in the advertisement which isFissued by the High Court are relatable to the recruitment year for whicha selection is carried out. Malik Mazhar Sultan (3) does not incorporatefuture vacancies, that is those which lie beyond the recruitment year forwhich the selection is to be made.

49. Now while giving meaning and content to the provisions ofGRule 7(1) of the Kerala Rules 1991 as amended, it would be appropriateto harmonize the ambit of the expression “notifying the probable numberof vacancies” on the basis of the Article 142 directions in Malik MazharSultan (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.HMoreover, as we have already explained, Rule 7(2) deals with tenure of the approved list while the determination of the probable number ofvacancies falls within the ambit of Rule 7(1). Hence, in determining theprobable number of vacancies likely to be filled up, the particular HighCourt has to take into account:

(i) The existing number of vacancies;

(ii) Anticipated vacancies during the year arising due toretirements and other exigencies of service includingpromotion, 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) mustbe based on this assessment. In fact, as noted earlier, this was exactlywhat was done by the appellant.

50. The submission which has been urged on behalf of therespondents, which found acceptance by the High Court was that sincethe tenure of the approved list is for a period of one year from the dateof the approval of the Governor or the publication of a fresh list, whichevertakes place earlier, the vacancies which have arisen between 7 May2020 (the date of the approval of the Governor) and 6 May 2021 (theexpiry of one year from the date of approval) must also be added in toform a part of the selection for 2019. There are significant problems inaccepting this line of interpretation which has found acceptance by theHigh Court.

51. Firstly, this line of interpretation requires the appointingauthority to take into account vacancies which have arisen in thesubsequent recruitment year 2020 in making appointments in pursuanceof the selection for recruitment year 2019. This, as a matter of firstprinciple, is impermissible. The determination of probable vacancies interms of Rule 7(1) is a determination which is based on the vacancieswhich are projected during the course of that recruitment year, in thiscase 2019. This exercise cannot cover, consistent with the mandate ofArt 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 computationof probable vacancies.

52. Secondly, adopting the interpretation which has been suggestedon behalf of the respondents would lead to serious anomalies. As wehave seen, a notification was issued by the appellant in the month of A

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AJune 2020 for the 2020 recruitment. The consequence of accepting thearguments of the respondents would be that posts which have to beallocated for recruitment against the existing and anticipated vacanciesfor 2020 would have to be reduced by allocating them to recruitmentyear 2019. The appellant has expressly determined and notified thevacancies which have arisen for 2020. The respondents argued thatBthough the original notification referred to a probable number of vacanciesthe corrigendum deleted the expression ‘probable’. This, in our view, isnot a matter of moment since the essence of the controversy lies ininterpreting the provisions of the Rules as they stand. If the respondentswere right in their submission, this would require the appellant toCprogressively remove from the ambit of the vacancies which are notifiedfor the subsequent recruitment year, the vacancies which are allocatedto the previous year on the basis of a supposed interpretation of Rule7(2). This would clearly be impermissible and bring uncertainty to therecruitment for subsequent years. It will cause serious prejudice tocandidates who qualify in terms of eligibility during the recruitmentDprocess of 2020 by reducing the number of probable vacancies and addingthem to the previous recruitment cycle.

53. The third anomaly which arises from the interpretation, whichhas been suggested by the respondents and which has been accepted bythe High Court, was noticed by the High Court itself in the course of itsEjudgment. If Rule 7(2) were to be given overriding importance withoutreading it in juxtaposition with the determination of the probable numberof vacancies under Rule 7(1), the issue is until what period of time wouldvacancies arising after the date of approval by the Governor have to befactored into account. Some of the petitioners before the High Court, asFindeed some of them in the written submissions before this Court, indicatedthat the number of vacancies as existing on the date of the approval ofthe Governor should form the basis of making appointments. The HighCourt rejected these arguments in the following observations:

“9. Immediately we have to notice that we cannot go mid-way toGdirect appointment to vacancies arising till the date of approval.We either decline the relief or grant it as permissible under therules. The date of approval is only relevant to determine the validityperiod of the list, as per the rules. We cannot give the date ofapproval any significance other than that prescribed in the rules.Which if allowed would literally be a half baked cake, neitherH

good for consumption nor completely worthless to be thrown out.We would not rest ourselves on such sticky premise ofuncertainty.”

The High Court was correct in comprehending that it could notaccept a half-way measure merely because it suited the interest of someof the candidates who would be appointed if the vacancies which hadarisen up to the date of approval were taken into account. Noticing thisanomaly, the High Court by its impugned judgment went the entire extentby issuing the following directions:

“38… We direct the appellant to prepare a select list from theapproved merit list including those vacancies which arise as ontoday and those anticipated till 06.05.2021 or any other date onwhich 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 forwarda select list in accordance with the rules 14 to 17 of Part II of theKS&SSR, 1958 from the approved merit list.”

The plain consequence of the decision of the High Court wouldbe that vacancies which have arisen during 2020 would be allocated to2019. This could only be done if the vacancies for 2020 were anticipatedto arise during 2019, which is not the case.

54. The fourth difficulty in accepting the line of approach of theHigh Court rests on constitutional principles. Undoubtedly, the validity ofRule 7(2) was not in question before the High Court. Counsel for therespondents argued that it does not lie in the province of the appellant toraise a doubt about the validity of its own rules, more particularly Rule7(2). It is necessary to note that Mr V Giri, learned Senior Counselappearing on behalf of the appellant did not suggest or argue that Rule7(2) should be held to be invalid. The submission of learned SeniorCounsel is that the expression “probable” denotes an addition/deductionwhich has to be made due to the imponderables of service such as death,resignation and promotion. The submission of the appellant is that a literalinterpretation of Rule 7(2), without reference to the constitutionalrequirement of not operating a select list beyond the notified vacancies,would render the Rule violative of Articles 14 and 16 and such aninterpretation should be avoided. In other words, his submission was A

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Athat a constitutional interdict cannot be overcome in the manner it hasbeen suggested by the respondents and a harmonious interpretation ofthe judicial service rules in the light of the directions in Malik MazharSultan (3) should have been resorted to by the High Court. We are inagreement with this line of submissions, based as it is on the precedentof this Court. It is a settled principle of service jurisprudence that whenBvacancies are notified for conducting a selection for appointments topublic posts, the number of appointments cannot exceed the vacancieswhich are notified. The answer to this submission, which has beenproffered by the respondents is that under Rule 7(1) a probable numberof vacancies is required to be notified and since an exact number is notCnotified, there is no constitutional bar in exceeding the 37 probablevacancies that were notified in 2019. The difficulty in accepting thesubmission is simply this: it attributes to the expression “probable numberof vacancies” a meaning which is inconsistent with basic principles ofservice jurisprudence, the requirement of observing the mandate ofequality of opportunity in public employment under Articles 14 and 16Dand is contrary to the ordinary meaning of the expression. Black’s LawDictionary[22] defines the expression ‘probable’ as:

“Probable’: likely to exist, be true, or happen”

“Probable’: likely to exist, be true, or happen”

‘Probable number of vacancies’, as we have seen, is based onEcomputing the existing vacancies and the vacancies anticipated to occurduring the year. It also accounts for the possibility of inclusion of someof the candidates that are in the wait-list. However, the expression‘probable’ cannot be interpreted as a vague assessment of vacanciesthat isn’t founded in reason and can be altered without a statutorilyprescribed cause. To allow the concept of probable number of vacanciesFin Rule 7(1) to trench upon future vacancies which will arise in asucceeding year would lead to a serious constitutional infraction.Candidates who become eligible for applying for recruitment during asucceeding year of recruitment would have a real constitutional grievancethat vacancies which have arisen during a subsequent year during whichG

22 11th Edition (Thomson Reuters West, 2019).

The definition of ‘Probable’ in the 4[th] edition, Revision 6 (1971) of the Black’s LawDictionary was: “Having the appearance of truth; having the character of probability;appearing to be founded in reason or experience…; having more evidence for thanagainst; supported by evidence which inclines the mind to believe, but leaves someHroom for doubt; Apparently true yet possibly false.”

they have become eligible have been allocated to an earlier recruitmentyear. If the directions of the High Court are followed, this would seriouslyaffect the fairness of the process which has been followed by glossingover the fact that vacancies which have arisen during 2020 will be allocatedfor candidates in the select list for the year 2019. Such a course ofaction would constitute a serious infraction of Articles 14 and 16 andmust be avoided. To reiterate, the submission of the appellant which weare inclined to accept is not that Rule 7(2) is invalid but that a harmoniousinterpretation of Rules 7(1) and (2) must be adopted that is consistentwith the Article 142 directions in Malik Mazhar Sultan (3) to bring therules in accord with the governing principles of constitutional jurisprudencein matters of public employment.

55. Fifthly, at this stage, we must also advert to another seriousaspect which arises from the judgment of the High Court. The HighCourt noticed in the course of its analysis that the acceptance of thesubmission of the respondents would lead to the appellant, on itsadministrative side, having to carry out piece-meal training for candidateswho are appointed to vacancies arising in the year after approval of themerit list. The approval of the Governor was received on 7 May 2020. Ifvacancies which arise between 7 May 2020 and 6 May 2021 are to bereckoned in making appointments for the 2019 process, the training ofcandidates who are appointed against the subsequent vacancies wouldtake place piece-meal and in a sporadic manner after the initial batch ofrecruits has been sent on training. Upon receipt of the approval of theGovernor, candidates to whom appointment orders were issued joinedtheir training and are in fact in the midst of their training. The High Courtwithout venturing a solution to this imbroglio came out with a suggestionin paragraph 29 of this judgment, which is extracted below:

“29. There could arise one problem insofar as the High Courthaving to carry out training, piece meal, of the recruits appointedto the vacancies arising in the one year after the approval of themerit list. This could be solved by selecting for training even personswhose vacancies have not arisen, in anticipation. Whenappointments are made in June 2020 in accordance with Rue 7(2)it could only be regularly made to vacancies that actually arose tillthat date. The High Court then would be faced with the problemof appointing fresh recruits in the enabling year to arising vacancieswho also would have to be given training for one year which may AB

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Aput the training process into jeopardy. We only observe that theHigh Court on its administrative side in consultation with theGovernment could device a procedure through which training couldbe commenced even for successful candidates, finding a place inthe merit list, who could be appointed to the anticipated vacancies,which vacancies definitely would arise by the time their training isBcompleted. This can especially be managed since the validity ofthe list go beyond one year from the date of approval of the meritlist and the training can commence only after the approval of themerit list. The selection of recruits to anticipated vacancies forundergoing training could also be made subject to the vacancyCarising and the new list coming into force with continuance intraining on a stipend till a regular appointment is made to thevacancy. We do not intent these observations to be in the natureof a direction and are only our thoughts, expressed aloud.”

The solution which the High Court has indicated is, as it clarified,Dnot in the nature of a direction but “only our thoughts, expressed allowed”.The solution suggested by the High Court is that candidates may beselected and sent for training even against vacancies which have notarisen, in anticipation of vacancies arising in future. The High Courtobserved that when appointments were made in June 2020, they couldonly be regularly made to vacancies that actually arose until that date.EThe High Court took notice of the fact that on its administrative side,appointment of fresh recruits to vacancies which would arise in theensuing year would put the training process into jeopardy. However, itsuggested that in consultation with the government, a procedure couldbe devised by which training could be commenced for candidates against Fvacancies which have still not arisen and which would arise in the future.The High Court even suggested that the trainees appointed againstpossible future vacancies could be paid a stipend. The solution whichhas been suggested by the High Court is plainly unacceptable. Personsare sent on training on being appointed to the judicial service and there cannot be two categories of trainees, one of whom receives a stipendGsince the vacancies for which they have been selected are yet to arise.Moreover, there will be a serious discontent if not all the candidates whoare sent on training in expectation of future vacancies can beaccommodated in service. We have emphasized the above aspect, forthe simple reason that the High Court was cognizant of the seriousHproblems which would result in the administration if its decisions were to hold the field. The suggestion by the High Court that the administrationmust send on training, candidates for whom there are no vacancies inthe service is contrary to law. In the event that some of the candidateswho are sent on training cannot be absorbed at a future date for want ofvacancies, it would lead to a serious dissatisfaction and be unfair to thecandidates who were sent for training. This would also cause a burdenon the exchequer requiring it to pay a stipend to persons who are yet tobe recruited to the judicial service, there being no present vacancies toaccommodate them.

56. During the course of the submissions, reliance has been placedon behalf of the respondents on the decision of this Court in Virendra SHooda v. State of Haryana[23]. This was a case where the HaryanaPublic Service Commission issued an advertisement for recruitment tothe Executive Branch of the Haryana Civil Service. The advertisementcovered 12 posts, 7 of which were in the general category and 5 werereserved. A written examination was held following which the resultswere published. The appellants were in the list of candidates whoseresults were declared but did not place sufficiently high to be appointedto the Civil Service (Executive Branch). They were given alternate posts.The writ petitions filed by the appellants were dismissed by the HighCourt and when the matter reached this Court, they were granted libertyto file fresh writ petitions for getting appointments on the basis of twocirculars of 1957 and 1972 which laid down the procedure to be adoptedfor selection against all notified additional vacancies which arise withinsix months from the recommendation of the names. The High Courtrejected the claim again but this Court eventually took the view thatwhen a policy was declared by the State as to the manner of filling upthe post and the policy is declared in terms of the rules, the instructionsnot being contrary to the rules, the State ought to follow them. Nowsignificantly, the administrative instructions which were referred to weresubsequently repealed by legislation with retrospective effect. The validityof the law was upheld by this Court in Virender Singh Hooda v. Stateof Haryana[24], though appointments made already in pursuance of thedirections of this Court were left undisturbed. The first decision inVirender Singh Hooda would have to be read in the context of thefacts of the case. Significantly, this Court did not have occasion to consider 23 (1999) 3 SCC 696

24 (2004) 12 SCC 588

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Athe earlier decision including the principle that appointments cannot bemade, consistent with Articles 14 and 16, in excess of notified vacancies.This principle was reiterated in Prem Singh (supra) which was prior tothe decision in Virender Singh. Be that as it may, we are of the viewthat in the above facts the decision in Virender Singh Hooda will notassist the respondents and would have to be confined to the peculiarBcircumstances in that case.

57. The respondents urged, on the basis of Annexures A-1 to A-3 produced before the High Court along with the statement filed on 18August 2020, and referred to in the appendix to the impugned judgment,that more than 37 vacancies actually existed as on 31 December 2019Cand therefore the select list could be operated for a larger number ofvacancies. We are unable to subscribe to this submission. Therespondents participated in the selection process on the basis of 37probable vacancies. Moreover, it has been submitted on behalf of theappellants that, Annexure A-2 appended to the submissions would indicateDthat the total number of vacancies as on 31 December 2019 were shownto be 43, which included 37 regular vacancies and 8 NCA vacancies.Out of the 37 regular vacancies only 32 could be included in the selectlist for the year 2019 because as against 5 vacancies candidates werenot available against the reserved turn. Those five vacancies have beentreated as NCA vacancies for 2020 and have been included in the list ofEvacancies for the succeeding year. The 37 regular vacancies and 8 NCAvacancies were notified for the year 2019, in accordance with the breakup provided in Malik Mazhar Sultan (3). It has been stated that 45vacancies notified for selection year 2019 included 4 vacancies underthe 10 per cent addition that had to be made for every year. However, Fonly two of the four vacancies had actually arisen and hence the figureof 43. On this basis, it has been submitted that there is no discrepancy inthe figures which were given in the statement filed before the HighCourt and the statement filed on additional affidavit before this Court.

58. Finally, it has been urged on behalf of the respondents that theGrecruitment process for the year 2020 has been delayed as a result ofthe onset of the Covid-19 pandemic. A recruitment notification was issuedin the month of June 2020. It has been submitted that the actual processof selection would take about one year following which candidates wouldhave to be sent on training. Hence it has been submitted that candidatesfor recruitment year 2020 would be in a position to actually commenceH

judicial duties only in early 2023. Having come to the conclusion that thejudgment of the High Court is erroneous, we are of the view that itwould be impermissible to grant relief to the respondents purely on thisbasis. The respondents have no vested right to appointment for the 2019selections. They cannot claim any right, or even equity, on the groundthat the selection for the subsequent year may be delayed. Vacanciesfor 2020 must be allocated to candidates who are duly selected inpursuance of the recruitment process for 2020. Candidates who haveranked lower in the 2019 selection and were unable to obtain appointmentscannot appropriate the vacancies of a subsequent year to themselves.To allow such a claim would be an egregious legal and constitutionalerror.

59. For the reasons which we have indicated, we are of the viewthat the judgment of the High Court cannot be sustained. We accordinglyallow the appeals and set aside the impugned judgment and order of theDivision Bench of the High Court of Kerala dated 26 August 2020. Thewrit petitions filed by the respondents before the High Court shall standdismissed. There shall be no order as to costs.

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

Devika Gujral

Appeals allowed.

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