THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE & ANR. ETC. versus DR. SUSMI C.T. & ANR. ETC. on 8 December 2021

1. Leave granted.

F2. The appealswere heard finally with the consent of the counselfor the parties.

3. The appellant (hereafter referred to as the “Director”)isaggrieved by the impugned final judgment and order dated 24.07.2019[1],as well as orders dated02.07.2019[2] and 19.06.2019[3] passed by the HighGCourt of Kerala at Ernakulam.

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1R.P. No. 657/2019, R.P. No. 659/2019, R.P. No. 660/2019, OP(KAT) No.286/2019,OP (KAT) No.287/2019

2OP(KAT) No. 256/2019

3OP(KAT) No. 17/2019 and OP(KAT) NO. 24/2019

4. The Director had filed petitions challenging orders of the KeralaAdministrative Tribunal (hereafter referred to as the “KAT”) which hadrequired the reporting of 28 vacancies in the post of Medical Officer(Ayurveda), Assistant Insurance Officer in the Department of IndianSystem of Medicine (hereafter referred to as the “posts”).

5. The Kerala Public Service Commission (hereafter referred toas the “KPSC”) issued a notification on 19.11.2014 eliciting applicationsfrom amongst eligible candidates for the posts. The first respondent alongwith several others applied for these posts. These candidates wereincluded in the ranked list published on 19.11.2014. In accordance withthe rules governing KPSC, the Department in question- i.e. Indian Systemof Medicine and Insurance Medical Service (hereafter referred to asthe “department”) -had to report vacancies for the duration in which thelist was operative. According to the procedure prescribed by those rules,vacancies had to be notified and candidates advised, after which theywere to be appointed. On 14.11.2017 the first respondent, and others(hereafter referred to as the “applicants”) preferred proceedings underSection 19 of the Administrative Tribunal Act before the KAT[4]. Theapplicants sought the direction to the department to report 65 vacanciesof the posts to KPSC before the list was to expire i.e. on or before18.11.2017. An interim application seeking a direction to advice 28vacancies remaining to be reported to the KPSC, was sought. The interimorder was granted on 14.11.2017. Like the respondent in this case, otherapplicants also moved the KAT with different applications. These wereconsidered and disposed of on 03.08.2018. The KAT took intoconsideration the pleadings and material before it, as well as thecontentions urged. It was contended that about 33 anticipated vacancieswere reported on 08.11.2017 and 28 provisional vacancies also neededto be reported which was taken care of by the interim order dated14.11.2017. The KAT accepted an argument on behalf of the applicantsthat by a promotion order dated 20.06.2017, eligible Medical Officers(Ayurveda) were promoted as Senior Medical Officers, as a result ofwhich 28 vacancies arose which had to be reported. In addition, theKAT also noted 15 other vacancies had to be treated as additional (overand above the 28 vacancies reported in terms of its interimorder) andthat the KPSC was bound to select candidates as against those vacancies.

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A6. The Department felt aggrieved and approached the KeralaHigh Court by filing O.P. (KAT) 256/2019. The High Court dismissedthe Writ Petition on 02.07.2019, holding that it had been filed belatedly.

7. As far asthe other petitions filed by the department wereconcerned,the High Court took note of the fact that in some cases ReviewBPetitions were filed and after their dismissal Writ Petitions were preferredbefore it, and in some[5 ]the orders remained unchallenged. As aconsequence, the High Court held that the finality of the Tribunal’s orderbound the department and consequently it could not maintain the WritPetitions which were dismissed.

C8. It is firstly urged by Mr. Pallav Sisodia, senior counsel on behalfof the Director, that the High Court erred in rejecting the Department’spetition on hyper-technicalities. It is pointed out that when the first WritPetition O.P. 256/2019 came up for hearing the High Court rejected it onthe ground of laches. A Review Petition (657/2019) was filed and rejected.It is pointed out that the Review Petition against the order in O.A. 2612/D2017 was dismissed on 12.11.2018 after which O.P. 256/2019 was filedagainst main order dated 03.08.2018. Since only seven months wasconsumed and given that there was no question of limitation, the HighCourt was in error in rejecting the petition on the ground of delay.Furthermore, the order in O.A.34/2018 was connected to O.A.2212/2017 which was challenged by the Department by filing O.P. 221/2019.EThat petition was still pending before the High Court. The dismissal,therefore, on the ground of the delay, was clearly in error.

9. It is urged by Mr. Sisodia that once the department soughtreview which was pending before the tribunal, the High Court could nothave assumed that the matterhad attained finality. On merits it is arguedFthat the KAT fell into error by firstly directing the department to advice28 vacancies on an assumption that they exist given that the rank listwas to expire in terms of the rules on 18.11.2017. Furthermore, the HighCourt overlooked the important feature that the KAT completely ignoredthe department’s counter affidavit which clearly disclosed that as against163 vacancies which arose during the period of the currency of theGranked list - 158 candidates had been advised and 5 vacancies could notbe filled since they were earmarked for persons with disabilities.10. It was further argued that initially when the applicantsapproached the KAT it was their claim that 125 candidates were advised, as against the 163 vacancies advertised in 2011. The data presented tothe tribunal on the other hand clearly showed that every vacancy thatoccurred as long as the rank list was inforce, was reported. In this contextlearned senior counsel appearing for the department relied upon a tabularchart to say that vacancies ranging between 17 and 1 were continuouslyreported for the period 05.05.2014 till 17.11.2017. It was further arguedthat the KAT fell into error in holding that several vacancies had arisendue to promotion of Senior Medical Officers.

11. Counsel relied upon the affidavit filed by the Director on03.08.2018 which clearly stated that the order dated 20.06.2017 merelysanctioned higher grade and had promoted Medical Officers as per theratio of 1:3 and the officials were allowed to continue under the sameinstitutions. It was a categorical position of the Department that novacancy arose in the entry cadre. The affidavit further stated that:

“3. ..As per GO (Rt) No. 459/2017/Ayush dated 11.10.2017,16 vacancies arose in Medical Officer (Ayurveda) post.Among this one vacancy was filled up by rejoining of aMedical Officer. Balance 15 vacancies were reported toKerala Public Service Commission and appointment was givento candidates as per the advise list from the Kerala PublicService Commission.

4. It is submitted that Government have reported total numberof 158 vacancies in the Medical Officer (Ayurveda) includingthe above 15 vacancies and as per the advise list from KeralaPublic Service Commission, 158 candidates were appointedfrom the category No. 268/2011 rank list. 5 vacancies wereset apart for Physically Handicapped candidates by KeralaPublic Service Commission.”

12. It was argued that the KAT’sdirections have the effect ofdisturbing cadre strength of Medical Officers in the department. Besidesthe directions,results in the appointment of candidates were in numbersexcess to what the rules would permit. In this context learned counselrelied upon Rules 13 and 14 of the Kerala Public Service CommissionRules of Procedure,1976 (hereafter referred to as “rules”).

13. Mr. P. B. Suresh, learned counsel appearing for the respondentsi.e. those who were applicants before the KAT - argued that this Courtshould not interfere with the impugned orders. Learned counsel contended ABC

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Athat although in terms of the rules, the life of the ranked list was twoyears, nevertheless it was extended by one more year. Counsel submittedthat Rule 14 of the rules obliged the KPSC to advise candidates for allvacancies reported and pending before it, and vacancies which could bereported for the period during which the ranked list was alive.

B14. It was therefore submitted that the department’s omission toreport 28 vacancies and other additional vacancies which arose onaccount of the promotions of incumbent Medical Officers (to the post ofSenior Medical Officers) entitled the candidates awaiting appointmentsand whose names were reflected in the rank list (like the applicants)toseek judicial remedies. The KAT after thoroughly examining all theCmaterials and considering the contentions made before it correctly heldthat there were adequate vacancies which had to be reported. Thedepartment did not disclose any sound rationale for not reporting suchvacancies. In these circumstances the interim order dated 14.11.2017was meant to and did complete justice to the parties.

D15. Learned counsel particularly relied upon the reasoning of theKAT in its order dated 03.02.2018 (in O.A. 1900/2017). He submittedthat the KAT took note of the Government order dated 20.06.2017permitting 115 Medical Officers to the post of Senior Medical Officerswhich resulted in 115 vacancies during the currency of the ranked list.These in terms of Rule 14 had to be reported. The absence of any soundEreason for not being reported, justified the KAT’s final operative directions.

16. Mr. Noor Muhamad, learned counsel appearing for some ofthe applicant candidates, also relied upon Rule 14. He further contendedthat the department’s position that the KAT’s order with respect tovacancies arising after the promotion order dated 20.06.2017 is justified.FThose vacancies necessarily had to be reported to the KPSC forappointment and further process. He also submitted that the posts andpromotions were governed by the Indian System of Medicines (KeralaService Rules, 2005). It was submitted that the relevant category ofposts i.e. Senior Medical Officers were to be filled only by promotionfrom the cadre of Medical Officers. The Departmental PromotionGCommittee convened for promotion of 140 Medical Officers to the postof Senior Medical Officers which resulted in 115 vacancies. This wasconsciously taken into account; the order was also considered by theKAT which issued directions. In these circumstances the High Courtwas justified in rejecting the Department’s Writ Petition.H

Reasoning and conclusions

17. Before proceeding with the discussion on merits, it is necessaryto extract the relevant rules. Rules 13 and 14 are reproducedbelow:

“13. The ranked lists published by the Commission shall remainin force for a period of one year from the date on which itwas brought into force provided that the said list will continueto be in force till the publication of a new list after the expiryof the minimum period of one year or till the expiry of threeyears whichever is earlier:

Provided that the above rule shall not apply in respect ofranked lists of candidates for admission to Training Coursethat leads to automatic appointment to Services or posts andthat in such cases the Ranked Lists shall …in force after oneyear from the date of finalisation of the Ranked Lists or afterone month from the date of commencement of the course inrespect of the last batch selected from the list within a periodof one year from the date of finalisation of the ranked listswhichever is later.

Provided further that the provisions of the proviso abovementioned shall not be applicable for the selection foradmission to the Forest Rangers Course and also foradmission to the Diploma Course in Forestry for whichselections have to be made annually in accordance with theinstructions of the Government of India issued from time totime. For these selections, the Ranked Lists will be in forceonly for a period of three months from the date of finalisationof the Ranked Lists or one month from the date ofcommencement of the course whichever is later.

Provided further that the Commission may take steps for thepreparation of a new ranked list wherever necessary evenbefore the expiry of the period of one year of the ranked list,by inviting applications but that the ranked list prepared inpursuance of the said notification shall be brought into forceonly after the expiry of the period of one year of the existingranked list.

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Provided further that a ranked list from which no candidateis advised during the period of one year from the date onwhich it was brought into force shall be kept in force till theexpiry of three years from the said date and in a case whereno candidate is advised from the ranked list till the expiry ofthe said period of three years, the duration of the ranked listshall be extended by the Commission for a further period ofone year or till at least one candidate is advised from the listwhichever is earlier.

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Provided further that if the Commission is satisfied of theexistence of a general ban not exceeding one and a half yearin the aggregate duration declared by the Government on thereporting of vacancies, to the Public Service Commission, theyshall have the power to keep alive the ranked lists which arenormally due to expire during the period of the above saidban or within 7 days of the cessation of the ban, for a furtherperiod of 30 days from the date of cessation of ban. If thecommission is satisfied of the ban and its consequences theyshall issue a notification keeping alive the ranked list in theabove manner and shall advise candidates to the vacancieswhich actually arose during the normal period of validity ofthe ranked list and certified to be as such by the Appointing C

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14. The Commission shall advise candidates for all thevacancies reported and pending before them and thevacancies which may be reported to them for the period duringwhich the ranked lists are kept alive in the order of priority,Fif any, and in the order of merit subject to the rules ofreservation and rotation, wherever they are applicable.

Provided that the advice of candidates by the Commissionfrom the ranked list kept alive under the 5th Proviso to …..beconfined to the vacancies that actually arose during theGnormal period of validity of the ranked lists. Rule 13 andcertified to be as such by the Appointing Authorities reportingvacancies to the Public Service Commission.

Note: The prolongation under the 5th proviso to Rule 13 shallnot be deemed to be part of the normal period of validity ofthe ranked list under Rule 13.”

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18. It is evident, therefore, that candidates can expect that theirclaim vacancies which occur during the currency of a ranked list, upontheir being advised by the KPSC, would be considered. This obligation,so to say, is because of the term in Rule 14 that the KPSC “shall advisecandidates for all the vacancies reported and pending before themand the vacancies which may be reported to them for the periodduring which the ranked lists are kept alive.” If one keeps in mind,that the KPSC’s obligation arises after the vacancies are reported, it isapparent, that as a prerequisite for that obligation, the vacancies shouldoccur, and should be reported.

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19. In the present case, the department’s clear position in itsCaffidavit, before the KAT was that all vacancies were reported, andthat only 5 vacancies that had to be filled from amongst candidates withdisabilities, were unfilled. This is quite apparent from the tabular chart,which disclosed the particulars of the vacancies that had arisen- duringthe currency of the ranked list, as well as those reported, and the finaltally of vacancies which existed, as on the date when the ranked listD

expired, i.e 18.11.2017:

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20. The basic premise for the KAT’s direction – which wasaffirmed by the High Court - was that 28 vacancies were not reportedand that 15 others arose. The KAT also formed the opinion that a largenumber of vacancies arose in the Medical Officers’ cadre, on accountof promotion orders dated 20.6.2017.

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21. This court notices that there was no dispute about the figuresprovided by the department, in the tabular chart. These reflected thegovernment’s ongoing engagement, and concern that the benefit ofappointment of all those who could be given appointment during thecurrency of the ranked list, was provided. Even as late as on 17.11.2017,Gvacancies were reported; between 19.10.2017 and 17.11.2017; 37vacancies were advised. There is also no dispute that the advice led tofurther appointment of successful candidates. This being the position,the KAT, in this court’s opinion, without any material, proceeded to directthe department to advise 28 vacancies on 14.11.2017. There is nothingon record to suggest that the government was tardy in reporting orH

advising, or was intentionally dragging its feet. This order was made atthe first hearing, without providing the department with any opportunityto respond to the demand for an interim order.

22. In the final order, the KAT virtually confirmed the interimorder, and proceeded to entirely discount the department’s stand that thepromotion of some medical officers to the higher grade, did notautomatically lead to existence of vacancies. The department hadexplained, in its affidavit, that the entire cadre of Medical Officers (714)with senior medical officers (237), was 951. The department’s affidavithad stated that the promotions were not perceived as ratio promotions,as a result of which vacancies in the cadre of Medical Officers couldnot be inferred. Further, according to the department, as in June 2017,the strength of Medical Officers was 851, in excess of the sanctionedcadre strength. It was contended that for these reasons, no vacanciescould be said to have arisen. However, the KAT rejected that submission;and the High Court confirmed its orders.

23. This court is of the opinion that the approach of the HighCourt was to put it mildly, cavalier. When the department approachedthe High Court under Article 226 of the Constitution, its petition wasrejected on the ground of laches, despite the fact that the main order ofthe KAT was given just a year before presentation of the petition;furthermore, the department had also filed a review petition. As far asthe other writ petitions are concerned, the High Court gave them a shortshrift saying that in one of the applications allowed by the KAT, theorder had been allowed to become final. This approach was wrong,because the department had approached the KAT with a review, whichwas pending. Furthermore, even if that were so, the High Court shouldhave considered the matter on merits, given that the issue involved, hadlarge ramifications. Shenoy & Co v. Commercial Tax Officer[6 ]is anauthority for the proposition that the state or any public agency, cannotbe precluded from challenging a judgment, on the ground that itapproaches this court, filing an appeal against only one party. Even if inthat case, the normative basis of the judgment under appeal is disturbed,and the issue concerns a matter having public ramifications, such as tax,or – in this case, recruitment, the final judgment would bind all concerned.In the present case too, therefore, the High Court’s reasoning that thestate had not filed petitions against other persons, was flawed; that ipso AB

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Afacto should not have precluded an examination of the merits of theKAT’s orders.

24. As noticed earlier, the right of those who find a position in theranked list, is to be advised against vacancies which arise during thecurrency of the list, and which are reported. In this case, the candidatesBcomplained that some vacancies had been kept back and not reported.

25. The right of selected candidates (as those in a ranked list are)was explained by a five-judge bench of this court in Shankersan Dash v. Union of India[7 ]in the following manner:

“It is not correct to say that if a number of vacancies areCnotified for appointment and adequate number of candidatesare found fit, the successful candidates acquire an indefeasibleright to be appointed which cannot be legitimately denied.Ordinarily the notification merely amounts to an invitation toqualified candidates to apply for recruitment and on theirDselection, they do not acquire any right to the post. Unlessthe relevant recruitment rules so indicate, the State is underno legal duty to fill up all or any of the vacancies. However,it does not mean that the State has the licence of acting in anarbitrary manner. The decision not to fill up the vacancieshas to be taken bona fide for appropriate reasons. And if theEvacancies or any of them are filled up, the State is bound torespect the comparative merit of the candidates, as reflectedat the recruitment test, and no discrimination can bepermitted.….”

26. It, is therefore, as against vacancies that are reported to theFKPSC, that the candidates have some semblance of a right. However,as far as those not reported are concerned, the candidates cannot claima right per se. It is possible that in given situations, the state may belethargic, or even may not wish to report vacancies. In such situations,undoubtedly the individuals awaiting appointment may have recourse toGjudicial remedies. In such proceedings, the government or the concernedagency can furnish a suitable explanation. If that is found to be arbitrary,appropriate directions may follow. However, the procedure in all suchcases, would be to consider the state’s response. In the present case,the KAT in this court’s opinion, entirely misdirected itself in making an H7 1991 (2) SCR 567

THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE v. DR. SUSMI C.T. & ANR. ETC. [S. RAVINDRA BHAT, J.]

inquiry whether vacancies had arisen in June 2017, with promotion ofsome Medical Officers. As the department explained, those promotionscould not automatically result in vacancies, having regard to the fact thatexcess number of Medical Officers were on the rolls. Furthermore, theKAT in our opinion, should not have inquired into the matter, once it wasreported that all vacancies that could be reported, had been reported- asis evident from the reply filed by the department, as well as the tabularchart in it.

27. For the above reasons, it is held that the impugned judgmentand orders of the High Court cannot be sustained. The said judgmentand order, as well as the orders of the KAT are, accordingly set aside.The appeals are allowed, but without order on costs.

Devika Gujral

Appeals allowed.

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