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Hareendran Nair v. State Of Kerala
Structured Summary of the Opinion (Mohammed, J.)
Factual and Procedural Background
Two advocates (the appellants) were included in a list of candidates prepared by the second respondent (the Registrar, High Court of Kerala) for appointment as Munsiff‑Magistrate pursuant to Exhibit P1 notification dated 18 October 1995. Exhibit P2 was described as a list of 84 candidates found suitable for appointment in the direct recruitment quota arranged in order of merit; the appellants were placed at ranks 12 and 30 in that list.
The list was prepared under rule 7 of the Kerala Judicial Service Rules, 1991 and forwarded to the Governor under sub‑rule (2) of rule 7. The Governor approved a list by order dated 21 July 1996, and that approved list was valid for two years (said to expire on 20 July 1998).
The appellants contended that the empanelment of 84 candidates indicated 42 probable vacancies (relying on the phrase “not more than double the number of probable vacancies” in sub‑rule (2) of rule 7) and pointed to the fact that only 20 candidates had been appointed; they sought directions to fill existing and next arising vacancies from Exhibit P2.
The second respondent (Registrar) filed a counter‑affidavit denying this claim. His position, in summary, was that the probable number of vacancies notified was 20 (15 by direct recruitment from the Bar and 5 by transfer under rule 5(3)). Annexures listed various candidate lists: 84 candidates for direct recruitment (Annexure A), two candidates for transfer quota (Annexure B), and 18 candidates for direct quota applying rules 14 to 17 of the Kerala State and Subordinate Service Rules, 1958 (Annexure C). Ultimately a list of 20 (18 bar candidates and 2 service candidates) was prepared and forwarded; the Government issued appointment orders dated 29 July 1996 for those 20. The Registrar denied that 84 were empanelled to fill 42 vacancies and maintained that the forwarded list contained only 20 candidates, that the list forwarded had been exhausted, and that no other list remained from which appointments could be made.
Legal Issues Presented
- Whether inclusion of the appellants' names in Exhibit P2 (the list of candidates) conferred on them any legal right to appointment to existing or future vacancies.
- How Sub‑rule (2) of rule 7 of the Kerala Judicial Service Rules, 1991 should be interpreted — specifically, whether a list sent for approval must always contain "not more than double the number of probable vacancies notified" or whether that phrase only imposes a maximum limit.
- Whether appointments can be made for anticipated or subsequently arising vacancies from a select list beyond the number of posts advertised or notified, and if so, under what circumstances (in light of authorities cited).
Arguments of the Parties
Appellants' Arguments
- The appellants argued that the empanelment of 84 candidates under Exhibit P2 implied 42 probable vacancies, by reference to Sub‑rule (2) of rule 7 which permits a list consisting of not more than double the probable vacancies.
- Because only 20 candidates were actually appointed, the appellants contended that there remained at least seven vacancies and sought a direction that the respondents fill current and next arising vacancies from Exhibit P2.
- The appellants relied on precedents (Prem Singh and T.D. Benny) to support the contention that selection and appointment processes may be used to cover anticipated vacancies and that appointments in excess of notified vacancies may sometimes be justified.
Respondent (Registrar)'s Arguments
- The Registrar stated that the probable number of vacancies notified was 20 (15 by direct recruitment and 5 by transfer under rule 5(3)), and that after following the prescribed selection procedure a list of 20 candidates (18 bar + 2 service) was prepared and forwarded for approval.
- The Registrar explained the role of Annexures: Annexure A showed 84 candidates found suitable for appointment in the direct quota; Annexure B listed two service candidates for the transfer quota; Annexure C listed 18 direct quota candidates applying rules 14–17 of the K.S. & S.S.R., 1958. The Registrar asserted that the Government issued appointments for the 20 candidates by order dated 29 July 1996.
- The Registrar denied that 84 candidates were empanelled to meet 42 probable vacancies and contended it is not mandatory that a forwarded list should always contain double the probable vacancies — the phrase sets an upper limit only. He also maintained that the earlier forwarded list had been exhausted and no other list remained from which to appoint.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Prem Singh v. Haryana State Electricity Board [1996 (2) L.L.N 27] | Selection/appointment processes may be started for clear and anticipated vacancies but not for future vacancies; where advert/requisition is for a certain number of posts the State cannot make more appointments than advertised except in exceptional or emergent circumstances on a policy decision. | The court relied on this authority to hold that if requisition/advertisement were for certain posts only, appointments cannot exceed the advertised number. Applied to the present facts, since only 20 vacancies were notified, appointment could only be to the notified vacancies. |
| T.D. Benny v. Registrar of Co‑operative Societies [1998 (3) L.L.N 10] | Between advertisement and appointment the number of posts may increase for various reasons (retirement, death, promotion); in such contingencies appointments in excess of vacancies advertised may be justified if they correspond to vacancies actually available at appointment time. | The court noted this principle but observed that in the present case appointments were not made in excess of the vacancies notified; hence appellants could not rely on this case to claim they would have been appointed after the list was exhausted. |
| Shankarsan Dash v. Union of India [1991 (2) L.L.N 65] | The mere inclusion of a candidate in a list of suitable candidates does not by itself confer a right to appointment. | The court invoked this authority to support the conclusion that mere inclusion in Exhibit P2 did not give the appellants any legal right to appointment. |
| State of Bihar v. Secretariat Assistant S.E. Union [(1994) 1 SCC 126 : AIR 1994 S.C. 736] | A person who is selected and included in a panel does not thereby acquire an indefeasible or absolute right to appointment. | Used to reinforce that selection or panel inclusion alone does not create an indefeasible claim to appointment; the court relied on this to deny the appellants' claim. |
| L.J. Divakar v. Government of Andhra Pradesh [1983 (1) L.L.N 327] | Referenced as authority supportive of the principle that inclusion in a list does not confer a vested right to appointment. | Cited by the court as additional support for the proposition that inclusion in the select list does not create a legal claim. |
| N.T. Devin Katti v. Karnataka Public Service Commission [1990 (2) L.L.N 1023] | Also referenced for the general proposition that panel inclusion does not automatically amount to an enforceable right to appointment. | Cited to corroborate the conclusion that appellants’ inclusion in Exhibit P2 did not entitle them to appointment. |
Court's Reasoning and Analysis
The court began by interpreting Sub‑rule (2) of rule 7 of the Kerala Judicial Service Rules, 1991, which provides that "The list consisting of not more than double the number of probable vacancies notified shall be forwarded for the approval of the Governor" and that the approved list remains in force for two years or until a fresh list is prepared, whichever is earlier.
The court read Sub‑rule (2) as creating a maximum limit on the number of candidates that may be included in a list forwarded for approval, not as a mandatory requirement that lists must always contain up to double the probable vacancies. In other words, the phrase "not more than double" sets an upper bound rather than prescribing that the forwarded list must equal that maximum.
Applying that interpretation to the facts, the court observed that an earlier list containing 20 candidates (the number of probable vacancies notified) had been submitted, approved and exhausted; its validity period had also run. The Registrar had later prepared Exhibit P2 containing 84 candidates for purposes related to applying rules 14–17 of the Kerala State & Subordinate Service Rules, 1958 concerning reservation and quota calculations for direct recruitment. The court treated the presence of 84 names in Exhibit P2 as connected to quota/selection procedures rather than proof that 42 vacancies had been notified or intended.
The court reviewed the authorities relied on by the appellants. From Prem Singh the court reiterated that selection can be for clear or anticipated vacancies but not for speculative future vacancies and that the State generally cannot make more appointments than those advertised unless exceptional circumstances exist. From T.D. Benny the court acknowledged that posts may increase between advertisement and appointment and that appointments exceeding the advertised number may sometimes be lawful when vacancies actually exist; nevertheless, the court found these authorities did not aid the appellants because, on the facts, appointments were made only to the notified vacancies.
Finally, the court emphasized the statutory and rule‑based limitation on any claim arising from inclusion in a list. It invoked rule 3(b) of the K.S. & S.S.R., which expressly states that inclusion in any approved list of candidates does not confer any claim to appointment. The court supplemented that rule with the cited precedents (Shankarsan Dash, State of Bihar, L.J. Divakar, N.T. Devin Katti) to hold that mere inclusion in Exhibit P2 did not create an indefeasible right to appointment for the appellants.
Holding and Implications
Holding: The writ appeal is dismissed.
Implications:
- The court refused to grant the appellants' request for direction to appoint them from Exhibit P2; their inclusion in the list did not confer a legal entitlement to appointment.
- The court's interpretation of Sub‑rule (2) of rule 7 treats the "not more than double the number of probable vacancies" language as a ceiling rather than a mandatory quota that must always be filled; thus a forwarded list may lawfully contain fewer than the double‑number figure so long as it does not exceed that figure.
- On the facts, appointments were confined to the 20 notified vacancies and no additional appointments were made from the lists beyond those vacancies; therefore, no relief was warranted for the appellants.
- The opinion applies existing authorities to deny the appellants' claim; the judgment does not purport to create a new legal principle or broader precedent beyond its application to these facts.
This summary is limited to the information contained in the provided opinion and does not add facts or inferences beyond the text of the judgment.
Mohammed, J.:— This appeal is directed against the judgment dismissing a writ petition, O.P No. 12880 of 1998 filed by two advocates whose names were included in the list of candidates prepared by the second respondent, the Registrar of High Court of Kerala. They applied for the post of Munsiff-Magistrate in the Kerala Judicial Service pursuant to Exhibit P1 notification, dated 18 October 1995. Exhibit P2 is the list of 84 candidates found suitable for appointment as Munsiff-Magistrate in the direct recruitment quota arranged in the order of merit. In the said list the ranks assigned to appellants 1 and 2 are 12 and 30 respectively. The above list was prepared by the second respondent in accordance with rule 7 of the Kerala Judicial Service Rules, 1991 (for short the Rules). Exhibit P2 list of candidates was forwarded to the Governor as required under Sub-rule (2) of rule 7. The said list was approved by the Governor as per order, dated 21 July 1996, and it was valid for two years, that is to say, it would expire on 20 July 1998, so points out by the appellants.
2. The counsel for the appellants contends that the number of vacancies to the post of Munsiff-Magistrate as per Exhibit P1 is 42 and that is apparent from 84 candidates being empanelled in the list. In support of this position reliance is placed on Sub-rule (2) of rule 7 which says that the list consisting of not more than double the number of probable vacancies notified shall be forwarded for the approval of the Governor. It is pointed out that only 20 candidates from the list were appointed. The appellants plead that there are at least 7 vacancies existing now and therefore they seek a direction to the respondents to fill up the existing and next arising vacancies to the post from Exhibit P2 list ofcandidates found suitable.
3. The second respondent Registrar filed a counter-affidavit opposing the aforesaid claim. His case can be summarised briefly thus: The probable number of vacancies notified was 20, out of which 15 by direct recruitment from the Bar and 5 by recruitment by transfer in accordance with rule 5(3) of the Rules. Annexure A appendea to letter, dated 28 June 1996, addressed to the Government was a list of 84 candidates found suitable for appointment in the direct recruitment quota. Annexure B thereto is the list of two candidates found suitable for appointment in the transfer quota in the order of merit Annexure C is the list of 18 candidates found suitable for appointment as Munsiff-Magistrate in the direct quota applying rules 14 to 17 of the Kerala State and Subordinate Service Rules, 1958. Thus after following the above procedure prescribed for selection, a list of 20 (18 bar candidates and two service candidates) was prepared and forwarded for approval. The Government issued an order, Exhibit Rule 2(b), dated 29 July 1996, appointing the said 20 candidates as Munsiff-Magistrates. The Munsiff-Magistrate Recruitment Committee constituted for the purpose of selection, on a consideration of all the vacancies then existing and the vacancies likely to arise during the next two years, fixed the probable number of vacancies as 20. The allegation that 84 candidates were empanelled in the list to fill up 42 probable vacancies of Munsiff-Magistrates was denied. It is not mandatory that the list should always contain twice the number of probable vacancies. In the present case, the number of vacancies notified was 20 and the list forwarded to the Governor for approval contained only 20 candidates. The said list has now been exhausted and there is no other list from which the appointment can be made.
4. Rule 7 of the Rules deals with preparation of lists of approved candidates and reservation of appointments. Sub-rule (2) thereof deals with the forwarding of the list to the Governor and approval thereof. Sub-rule (2) is thus
“(2) The list consisting of not more than double the number of probable vacancies notified shall be forwarded for the approval of the Governor. The list approved by the Governor shall come into force from the date of approval and shall remain in force for a period of two years or until a fresh approved list is prepared, whichever is earlier.”
What this sub-rule provides is that a list consisting of candidates selected for the number of vacancies notified shall be forwarded to the Governor. The said list may contain the names of more candidates than the number of actual vacancies. In such cases the list of candidates shall contain not more than double the number of probable vacancies notified. That does not mean there shall always be a list consisting of not more than double the number of probable vacancies. In other words, Sub-rule (2) creates a maximum limit for the number of candidates in the list to be sent for approval. Thus the submission of the list consisting of not more than double the number of probable vacancies notified is not a mandatory requirement. In the present case, what was submitted was the list containing 20 candidates being the number of probable vacancies notified. Now the list had already been exhausted and the validity period was over. The second respondent prepared Exhibit P2 list containing 84 candidates though the actual number of vacancy was 20, for the reason that rules 14 to 17 of the K.S and S.S.R have to be observed while fixing the quota for direct recruitment.
5. Notwithstanding the above, the counsel for the appellant relies on the decision of the Supreme Court in Prem Singh v. Haryana State Electricity Board [1996 (2) L.L.N 27], and thereby submits that the selection and appointment can also be made for anticipated vacancies. The following observation of the Supreme-Court in the above decision is relevant, in Para. 25, at pages 34 and 35:
“………. the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by tarking a policy decision in that behalf….”
From the above, it is clear that if the requisition and advertisements are for certain number of posts only, the State cannot make more appointments than the number of posts advertised. In this case, the second respondent though prepared a list of 84 candidates in view of rules 14 to 17 appointment can only be made to 20 notified vacancies. It has to be observed that the Supreme Court in that case did not invalidate the additional appointments already made towards the vacancies arose as a result of retirement which could have been reasonably anticipated by the Board. As far as the present case is concerned the actual vacancies were alone notified and hence no additional appointment was made. This is different from non-invalidating an appointment already made.
6. Yet another decision of the Supreme Court relied on by the counsel for the appellants in T.D Benny v. Registrar of Co-operative Societies [1998 (3) L.L.N 10], relating to the recruitment to the post of clerk in the District Co-operative Bank, Kottayam. The counsel relied on the following observations contained in the said judgment, in Para. 18, at pages 21 and 22:
“…It is well known that during the time when an advertisement is issued and by the time when process of selection starts and ultimately appointment orders are issued on account of several factors the number of posts may be increased, the factors being retirement of persons on attaining superannuation, death of several employees, promotion of the employees to higher posts and for variety or outer grounds. In such contingencies, when appointments are made depending upon the vacancies available and in excess of the vacancies advertised it cannot be said that the appointment has been made in excess of the strength of the cadre approved …”
On the basis of the above observation the appellants cannot urge that they would have been appointed even though the list had been exhausted. In the present case, there is no question of appointment it excess of the vacancies notified and the appointment was made only to the notified vacancies for which alone select list was prepared.
7. It is no doubt true that the appellants' names were included in Exhibit P2 list. That was a list of candidates found suitable for appointment as Munsiff-Magistrate in the direct recruitment quota. Such a list was prepared in order to apply rules 14 to 17 of the Kerala State and Subordinate Service Rules, 1958, relating to reservation of appointments which was found to be essential while fixing the quota for direct recruitment. Therefore, mere inclusion of name in Exhibit P2 list does not confer any legal right on appellants. In Shankarsan Dash v. Union Of India. [1991 (2) L.L.N 65], the Supreme Court held that the mere inclusion in the list does not confer any right or claim of appointments. In State of Bihar v. Secretariat Assistant S.E Union [(1994) 1 SCC 126 : AIR 1994 S.C 736], the Supreme Court took the view that a person who is selected does not on account of being in the panel alone acquire any indefeasible right of appointment. In this context, it is apt to refer to rule 3(b) of the K.S & S.S.R which is as follows:
“(b) The inclusion of a candidate's name in any list of approved candidates for any service (State or Subordinate) or any class or category in a service, shall not confer on him any claim to appoint to the service, class or category”
In view of the above provision, the matter is crystalline that the appellants cannot project any claim for appointment to the post. (See also. L.J Divakar v. Government of Andhra Pradesh [1983 (1) L.L.N 327] and N.T Devin Katti v. Karnataka Public Service Commission [1990 (2) L.L.N 1023]).
8. In view of what is said above, there is no reason to interfere with the judgment impugned in this appeal The writ appeal is accordingly dismissed
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