P.V. Asha, J.:— The petitioners in both these Writ Petitions are seeking directions to the High Court to fill up all the vacancies of Munsiff-Magistrate existing as on 7.5.2020/during the currency of the rank list.

2. The High Court of Kerala issued notification dated 01.02.2019 (Ext.P1) inviting online applications from qualified candidates for appointment to the posts of Munsiff-Magistrate in the Kerala Judicial Service against NCA and regular vacancies. The number of vacancies notified was 37 (probable) including 1 vacancy reserved for persons with disabilities, for appointment by direct recruitment and recruitment by transfer. After the main examination including written test and interview, Ext.P2 list of candidates qualified for selection, was published on 20.02.2020. In the merit list for direct recruitment, there were 69 candidates and in the merit list for recruitment by transfer there were 2 candidates. The Government of Kerala thereafter as per gazette notification dated 07.05.2020 (Ext.P13 in W.P(C).10007/2020 and Ext.P5 in W.P(c). No. 10361/2020) appointed 32 candidates as Munsiff/Magistrate trainees by direct recruitment for the year 2019. The Writ Petition is filed at this stage pointing out that several vacancies arose in the post of Munsiff/Magistrate on account of promotions, to the post of Sub Judges, consequential vacancies on account of promotions made against vacancies of District Judges, as on 07.05.2020 and thereafter. The petitioners claim that as per Rule 7(2) of the Kerala Judicial Service Rules, 1961 as amended w.e.f 19.01.2019, the merit list prepared by the High Court, on approval by the Governor, shall be valid till the notified vacancies and the vacancies arising within one year from the date of approval of the list, are filled up. It is stated that the notification was issued on 01.02.2019 after the amendment rules came into force. Therefore, according to them, the judgment of the Apex Court in Malik Mazhar Sultan (3) v. U.P. Public Service Commission [(2008) 17 SCC 703] as modified, read with the amended Special Rules mandate filling up of all the vacancies which existed as on 7.5.2020 when the Governor approved the list. In W.P(c). No. 10361/2020, the petitioners claim that the vacancies which arise for the period of one year from 7.5.2020 shall also be filled up from the present rank list. Therefore, according to them, limiting of appointments to 32 vacancies only as done in the notification dt.7.5.2020 is contrary to the Special Rules.

3. The High Court has filed a statement. According to the High Court, the Kerala Judicial Service Examinations is regulated not only by the Special Rules but also by the guidelines and directions issued by the Honourable Supreme Court. Ext.P1 notification was issued on 01.02.2019 and the merit list was published on 20.02.2020. Though the petitioners were qualified in the examination, they were not included in the merit list for direct recruitment. It is further stated that the High Court had taken steps to conduct the selection procedure in tune with the time schedule fixed by the Apex Court in its order dated 04.01.2007 in the Malik Mazhar Sultan (3) (supra) to the maximum extent possible and regular status reports are being filed regarding the conduct of the examinations. As per the time schedule fixed, the date for issuing appointment letter by the competent authority for all the vacant posts is on 1 December; therefore no deviation is permissible without the permission of the Apex Court. It is stated that at times the selection lags behind the schedule because of reasons beyond the control of the High Court; but no changes are made in the manner of calculating the vacancies; vacancies upto 31 December of the year in which the notifications were issued, alone were notified and only those notified vacancies were filled up. It is stated that in various judgments the Supreme Court has held that no vacancy over and above the number of notified vacancies shall be filled up. Regarding the provisions contained in Rule 7(2) of the Special Rules it is stated that at the time when the proposal for the amendment was submitted in 2015, the practice was to notify the vacancies for the period upto 31 December of the subsequent year. In the 2013 selection the vacancies arising upto 31.12.2014 were notified. The merit list of the 2013 selection could be approved by 31.12.2013 and therefore the vacancies arising upto 31.12.2014 could be filled up. It is stated that such procedure was adopted in view of the fact that the selection procedure along with training would be completed only in two years and Judicial Officers would be available only after that. In the 2016 selection the Munsiff Magistrates' Recruitment Committee resolved that only those vacancies arising upto 31.12.2016 need be notified in view of the orders passed by the Apex Court on 04.01.2007. In 2017, 34 vacancies were notified in the notification issued on 07.11.2017; merit list was published on 17.12.2018 and candidates were appointed on 29.01.2019. Since sufficient time was not available to issue notification in 2018, the vacancies which arose in 2018 and upto 31 December 2019 were notified in the notification dated 01.02.2019. As per the guidelines of the Supreme Court, 37 regular vacancies (probable) were notified. It is stated that all efforts were taken for the conduct of the selection procedure within the time frame fixed by the Hon'ble Supreme court to the maximum extent possible. According to them, if all the vacancies for the period of one year from the date of approval by the Governor are filled up from 2019 selection, the vacancies available for the next selection will be very few. It is stated that vacancies which arose after 31.12.2019 are to be filled up by the next recruitment for which steps were delayed on account of the pandemic. According to them filling up of any further vacancy would amount to violation of Articles 14 and 16 of the constitution, as held by the Apex Court in a series of decisions, as the number of vacancies notified is only 37.

4. Heard M/s. P.C. Sasidharan and Dr. Jacob P. Alex, the learned Counsel appearing for the petitioners in the respective Writ Petitions and Sri. Elvin Peter the learned Counsel for the High Court.

5. The contention of the High Court is that filling up of vacancies which arose beyond 31.12.2019 would be contrary to the directions of the Apex Court in its order dated 04.01.2007, as modified on 24.03.2009 in Malik Mazhar Sultan (3) (supra) case, though the Special Rules provide that the merit list would remain in force till the notified vacancies and the vacancies that may arise within one year from the date of approval of the list are filled up or till the fresh list comes into force. As per the time schedule each recruitment has to be completed year to year. Therefore, the vacancies which arose in 2020, can be filled up only in the next selection. It is also their contention that filling up of vacancies over and above the notified 37 would also be contrary to the settled legal positions.

6. On the other hand, the learned Counsel for the petitioners argued that even while fixing the time schedule, the Apex Court directed the High Court to fill up the vacancies in accordance with the existing Special Rules.

7. It is seen that before the 2019 amendment to the Special Rules, there was no provision to keep the list valid till all vacancies within one year of the approval of the select list are filled up. In this context it is necessary to have a look at the directions in the orders passed by the Apex Court.

8. As per order dated 04.01.2007 in Malik Mazhar Sultan (3)'s case (supra), the Apex Court fixed the time schedule for filling up the vacancies of Judicial Officers in various cadres in the distrcts. The time schedule in respect of appointment of Munsiff Magistrates equivalent to that of Civil Judge (Junior Division) by direct recruitment, was the following:

Sl No Description Date 1 Number of vacancies to be notified by the High Court Vacancies to be calculated including (a) Existing vacancies. (b) Future vacancies that may arise within one year due to retirement. (c) Future vacancies that may arise due to promotion, death or otherwise, say ten per cent of the number of posts. 15th January 2 Advertisement inviting applications from eligible candidates. 1st February 3 Last date for receipt of application. 1st March 4 Publication of list of eligible applicants The list may be put on the website. 2nd April 5 Dispatch/Issue of admit cards to the eligible applicants. 2nd to 30th April 6 Preliminary written examination Objective questions with multiple choice which can be scrutinised by computer. 15th May 7 Declaration of result of preliminary written examination (a) Result may be put on the website and also published in the newspaper. (b) The ratio of 1:10 of the available vacancies to the successful candidates be maintained. 15th June 8 Final written examination Subjective/Narrative. 15th July 9 Declaration of result of final written examination (a) Result may be put on the website and also published in the newspaper. (b) The ratio of 1:3 of the available vacancies to the successful candidates be maintained. (c) Dates of interview of the successful candidates may be put on the internet which can be printed by the candidates and no separate intimation of the date of interview need be sent. 30th August 10 Viva voce. 1st to 15th October 11 Declaration of final select list and communication to the appointing authority 1st November (a) Result may be put on the website and also published in the newspaper. (b) Select list be published in order of merit and should be double the number of vacancies notified. 1st November 12 Issue of appointment letter by the competent authority for all existing vacant posts as on date. 1st December 13 Last date for joining 2nd January of the following year

9. In para.15, it was made clear that 10% of the unforeseen vacancies would be in respect of sanctioned posts and not vacancies occurring in a particular year. It was also ordered that the select list shall be valid till the next select list is published. The Apex court thereafter requested the Chief Justice of each High Court to constitute a committee of Judges to monitor and oversee that timely selection and appointment of judicial officers is made. It was also requested to constitute a special cell for “Selection and Appointment” in the High Court with an officer of the rank of Registrar for assisting the Committee and the Chief Justice for complying with the aforesaid time schedule. In paras.10 and 17 of the judgment it was directed as follows:

“10. The Registrar of the aforesaid Selection and Appointment Committee shall send to the Registrar General of this Court by 31st January every year report as regards the filling up of vacancies with copies to Minister for Law and Justice in the Central Government and the Law Minister of the State concerned. The Registrar would also bring it to the notice of the Committee and the Chief Justice, any deviation from the time schedule.”

xxxxxxxxxxxxxxxxxx

17. The High Courts/State Governments/Union Territories shall be at liberty to apply to this Court for variation in the time schedule in case of any difficulty having regard to the peculiar geographical and climatic conditions in the State or other relevant considerations. However, till such time a different time schedule is permitted, the aforesaid time schedule shall be adhered to and appointments made accordingly.

10. As some of the High Courts pointed out that the number of anticipated vacancies to be notified would be very large if 10% is reckoned on the number of posts, towards anticipated vacancies, the Apex court, as per its order dated 24.03.2009 in Malik Mazhar Sultan v. U.P. Public Service Commission: (2009) 17 SCC 24, modified the order passed on 4-1-2007 directing that “Existing vacancies+ (b) Future vacancies that may arise within one year due to retirement +(c) Future vacancies that may arise due to promotion, death or otherwise, say ten per cent of the number of posts, the number of vacancies to be notified” directed on 04.01.2007 shall stand modified as “the existing number of vacancies plus the anticipated vacancies for the next one year and some candidates also be included in the wait list.”

11. Despite the provisions contained in Rule 7(2), the contention of the High Court is that filling up of vacancies which arose beyond 31.12.2019 would be contrary to the directions of the Apex Court in its order dated 04.01.2007, as modified on 24.03.2009 in Malik Mazhar Sultan (3)'s case (supra), according to which each recruitment has to be completed year to year as per the time schedule fixed. In this context it is relevant to note the first sentence in para.5 of the order dated 04.01.2007, which reads as follows:

“5. Before we issue general directions and the time schedule to be adhered to for filling vacancies that may arise in subordinate courts and District Courts, it is necessary to note that selections are required to be conducted by the authorities concerned as per the existing Judicial Service Rules in the respective States/Union Territories.”

12. The petitioners have raised the claim for appointment, relying on Rule 7(2) of the Kerala Judicial Service Rules 1991, (‘the Special Rules’ for short), as amended as per notification dated 14.01.2019 and published in gazette dated 19.01.2019. Therefore, it is necessary to have a look at Rule 7 of the Special Rules. Before its amendment in 2019, Rule 7 read as follows:

“7. Preparation of lists of approved candidates and reservation of appointments: (1) The High Court of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable number of vacancies likely to be filled up, prepare a list of candidates considered suitable for appointment to category (2). The list shall be prepared after following such procedure as the High Court deems fit and by following the rules relating to reservation of appointments contained in Rules 14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958.

(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 the approval and shall remain in force for a period of three years or until a fresh approved list is prepared, whichever is earlier.”

13. After amendment Rule 7 Read as follows:

“7. Preparation of lists of approved candidates and reservation of appointments: (1) The High Court of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable number of vacancies likely to be filled up, prepare a list of candidates considered suitable for appointment to category (2). The selection shall be on the basis of competitive examination at two successive stages. At the first stage, a Preliminary screening examination is to be conducted to find out the true aspirants for the posts and to make the Main examination more competitive. In the Preliminary examination, the ratio of 1:10 of the notified vacancies to the successful candidates be maintained. At the second stage, there shall be a Main examination consisting of a written examination and a viva voce. The main (written) examination shall have four papers with 100 marks each at a total of 400 marks, based on the syllabus prescribed by the High Court from time to time. The number of candidates for the viva voce shall not ordinarily exceed three times of the notified vacancies. The maximum mark for viva voce shall be 50. The cut off mark in the viva voce is 40% for the general and Other Backward Class candidates and 35% for the SC/ST candidates. The merit list shall be prepared on the basis of aggregate marks secured by the successful candidates in the Main (written) examination and viva voce. For the preparation of the merit list and select list, rules 14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958 shall be followed.

(2) The merit list prepared by the High Court shall be forwarded for the approval of the Governor. The list approved by the Governor shall come into force from the date of the approval and shall be valid till the notified vacancies and the vacancies that may arise within one year from the date of approval of the list, are filled up or a fresh list comes into force, whichever is earlier.”

14. Going by Rule 7(2) of the Special Rules, the merit list approved by the Governor shall be valid till all the notified vacancies and vacancies which arise within one year of the date of approval of the list by the Governor are filled up. The Governor approved the list on 07.05.2020. Several vacancies arose during the period from 01.01.2020 to 07.05.2020 and thereafter. In the Writ Petition itself the petitioners pointed out that several Sub Judges were promoted as District Judges in March and April and on promotion to the consequential vacancies, there would be at least 20 more vacancies of Munsiff/Magistrates. Along with the reply affidavit filed in W.P.(C) No. 10361 of 2019, the petitioners have produced Ext.P7 order from which it is seen that 21 Munsiff-Magistrates were promoted as Sub Judges/Chief Judicial Magistrates after 07.05.2020. Thus there are at least 21 vacancies even before the expiry of 2 months from the date of approval of the merit list by the Governor. As pointed out by the learned Counsel for the petitioners, it would take at least one year for completion of the process of selection, which is now being initiated. Even after the selection, the selected candidates would become available for appointment only after one more year. Therefore, these vacancies would remain unfilled for about 2 more years in case appointment is not made from the present rank list.

15. Though the High Court has to follow the guidelines and time schedule fixed by the Hon'ble Supreme Court in its order dated 04.01.2007 as modified on 24.03.2009 in Malik Mazhar Sultan (3)'s case (supra) and reports are to be furnished every year, it cannot be said that the Special Rules can be ignored. It is seen that the time schedule is fixed in order to see that there is no delay in filling up the vacancies. The Apex Court also directed that selection has to be conducted in accordance with the Special Rules.

16. It is pertinent to note that even in the judgment in Rakhi Ray v. High Court of Delhi: (2010) 2 SCC 637, the Apex Court held that when there is a statutory rule, it has to be followed. As per the Special Rules of Delhi Judicial Service vacancies ought to have been determined before advertisement. Therefore, it was held that the direction in Malik Mazhar Sultan (3)'s case (supra), to notify anticipated vacancies also cannot apply to them. It is relevant to note paras.20 and 21 of the judgment.

“20. Therefore, it is evident from the aforesaid judgment that in spite of acceptance of the recommendations made by Justice Shetty Commission, this Court insisted that the existing law/statutory rules in making the appointment of Judicial Officers be amended accordingly. In Syed T.A. Naqshbandi, this Court repealed the contention which is being advanced by the learned counsel for the petitioners therein and the Court in crystal clear words held that appointments have to be made giving strict adherence to the existing statutory provisions and not as per the recommendations made by Justice Shetty Commission. Of course, in absence of statutory rule to deal with a particular issue, the High Courts are bound to give effect to the directions issued by this Court.

21. The appointments had to be made in view of the provisions of the Delhi Higher Judicial Service Rules, 1970. The said Rules provide for advertisement of the vacancies after being determined. The Rules further provide for implementation of reservation policies in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. As the reservation policy is to be implemented, the number of vacancies to be filled up is to be determined, otherwise it would not be possible to implement the reservation policy at all. Thus, in view of the above, the question of taking into consideration the anticipated vacancies, as per the judgment in Malik Mazhar Sultan (3) case, which had not been determined in view of the existing statutory rules could not arise.”

17. The contention raised by the High Court that no vacancy in excess of 37 can be filled up, cannot also be accepted, as the number of vacancies notified in Ext.P1 notification is 37 (probable). In case the number of vacancies was 37 without specifying “probable”, the contention of the High Court could have been accepted. Therefore, the settled legal position, that appointments cannot be filled up in excess of vacancies notified, in the light of the judgments of the Apex Court in Union of India v. Ishwar Singh Khatri: 1992 Supp (3) SCC 84, Gujarat State Deputy Executive Engineers Association v. State of Gujarat: 1994 Supp (2) SCC 591, State of Bihar v. Secretariat Assistant, Successful Examinees Union: (1994) 1 SCC 126, Prem Singh v. Haryana SEB: (1996) 4 SCC 319, Ashok Kumar v. Banking Service Recruitment Board: (1996) 1 SCC 283, Rakhi Ray v. High Court of Delhi: (2010) 2 SCC 637, etc. would not be applicable in the present case.

18. The respondents have limited the appointments to the notified vacancies on the ground that the time schedule fixed by the Apex Court envisages the filling up of the vacancies arising in the year of recruitment alone. In order to limit the appointments to the number of vacancies arising in an year, Rule 7(2) of the Special Rules will have to be amended again. When there is a Special Rule governing the selection and appointment, the petitioners have every right to be considered for selection in accordance with the Special Rules and once they are included in the merit list, they are entitled to be considered for appointment in accordance with the Special Rules. Though it is true that a candidate does not acquire any indefeasible right to appointment by mere inclusion in the rank list, the denial of consideration of the case of the petitioners for appointment, in accordance with Rule 7(2) of the Special Rules against vacancies existing and arising within one year from 07.05.2020, on the basis of their inclusion in the merit list, would amount to violation of their fundamental right guaranteed under Articles 14 and 16 of the Constitution of India.

19. Therefore, as long as sub rule 2 of Rule 7 of the Special Rules, as amended on 19.01.2019 is in force, the respondents will have to fill up the vacancies, as provided therein. It would be upto the respondents to seek permission from or furnish explanation before the Apex Court. Public interest also demands filling up of vacancies through a regular process, at the earliest point of time rather than keeping those unfilled or resorting to temporary appointments till the next batch of candidates become available after training.

20. Therefore, the Writ Petitions are allowed. There shall be a direction to the 2 respondent to forward an additional list of candidates from the merit list dated 20.02.2020 to the Governor for approval and appointment as Munsiff-Magistrates in accordance with rules as expeditiously as possible and at any rate within a period of six weeks from the date of receipt of a copy of the judgment.