REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  2511 OF 2012 (Arising out of SLP (C) No. 16289 of 2011)

Smt. K. Lakshmi  …Appellant

Versus

State of Kerala & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. Recruitment to public services often gets embroiled in  

legal  complications  and  resultant  litigation  consequently  

delaying the process of filling up of the vacancies, a feature  

hardly conducive to public interest.  What is disturbing is  

that  recruitment  process  for  appointment  to  the  District  

Judiciary  in  the  States  is  also  not  immune  to  this  

phenomenon  no  matter  recruitments  are  made  in  

consultation with the High Court on the administrative side  1

and at times monitored by them. The present appeal that  

arises out of an order passed by the High Court of Kerala is  

one such case where the recruitment process for the post  

of District and Sessions Judges in the Kerala State Higher  

Judicial Service was the subject-matter of multiple rounds  

of  litigation.  The  genesis  of  the  present  lis  lies  in  a  

notification  issued  by  the  High  Court  of  Kerala  for  

appointment to the six  vacancies  in the cadre of District  

and Sessions Judges by direct  recruitment from the Bar.  

Notification  dated  16th April,  2007  inviting  applications  

against  those  vacancies  was  followed  by  a  written  

examination conducted in October 2007 in which as against  

960 candidates who applied, only 443 candidates actually  

took  the  written  examination  conducted  between  27th to  

29th October,  2007.  Surprisingly  enough  only  seven  

candidates qualified in the written examination by securing  

the minimum qualifying marks specified in paragraph 4 of  

the  recruitment  Notification.  Out  of  the  seven,  one  

belonged to Scheduled Castes category, three to OBCs and  

the  remaining  candidates  were  from  the  open  merit  

category.  

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3. Looking to the number of candidates who had qualified  

for interview, the Recruitment Committee comprising five  

senior-most Judges of the High Court was of the view that  

sufficient number of candidates may not be available to fill  

up  the  notified  vacancies.   The  Committee,  therefore,  

resolved to award 20 marks by way of moderation in all the  

three  papers  of  the  written  examination  to  all  the  

candidates  who  appeared  for  the  examination  so  that  a  

larger  number  of  candidates  qualified  in  the  written  

examination  and  became eligible  for  consideration.  Merit  

list after giving such benefit was prepared and approved by  

the Recruitment Committee. The result was that against the  

seven  candidates  who  had  previously  qualified,  45  

candidates became eligible for the viva-voce examination.  

Two of these candidates namely, Muhammed Raees M and  

Minu Mathews were, however, excluded from the selection  

process on the ground that they had secured employment  

during  the  interregnum.   The  exclusion  was  successfully  

challenged by the said candidates who were then permitted  

to participate in the viva-voce examination as well.   

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4. Interviews  for  the  eligible  candidates  were  held  in  

December 2008 and based on the merit so determined, the  

High  Court  published  a  final  selection  list  containing  the  

names of 29 candidates. The select list was prepared by  

excluding candidates who were less than 35 years of age or  

more than 45 years as on 1st January, 2007. The age bar, it  

is noteworthy, was introduced by the amending Kerala Sate  

Higher Judicial  Services Rules which amendment came in  

June 2008 i.e. after the selection process has commenced.  

Those who were excluded from consideration on the basis  

of  the  amended  rules  challenged  their  exclusion  in  Writ  

Petition(C) No.2021 of 2009 and connected petitions which  

were  allowed  by  a  Division  Bench  of  the  High  Court  of  

Kerala  with  a  direction  that  the  selection  process  be  

conducted in accordance with the rules as the same were  

on  the  date  of  the  issue  of  the  notification  inviting  

applications from the eligible candidates.  A revised merit  

list was accordingly issued comprising 45 names.  

5. The  Recruitment  Committee  considered  the  revised  

merit list and found that two open category candidates and  

one reserved category candidate who stood appointed shall  

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have to be elbowed out of service in view of the revised  

select  list.  The  Committee  appears  to  have  suggested  a  

solution that would avoid such a situation.  The High Court  

on  the  basis  of  the  recommendations  made  by  the  

Committee recommended to the Government to invoke its  

power under Rule 39 of the K.S. & S.S.R. to protect the  

said three candidates whose services were otherwise very  

satisfactory.  The recommendation suggested utilisation of  

four vacancies that had occurred subsequent to the issue of  

the recruitment Notification in addition to the six already  

notified.  The  recommendation  sent  to  the  State  

Government  accordingly  contained  names  of  nine  

candidates  while  one  was  kept  unfilled  in  view  of  the  

pendency of Special  Leave Petition (C) No.4203 of 2009.  

With the dismissal of the Special Leave Petition, the said  

slot  was  recommended  to  be  filled  up  by  appointing  

Muhammed Raees M. against 10th vacancy.  Writ Petition  

(C) Nos.16206 of 2010 and 16207 of 2010 were then filed  

by C. Jayachandran and Minu Mathews whereby the award  

of  grace  marks  by  way  of  moderation  to  other  three  

candidates included in the said list  was challenged.  The  

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said  petitions  were  finally  allowed  by  the  High  Court  of  

Kerala by its order dated 13th September, 2010 holding that  

the award of grace marks by way of moderation was not  

legally permissible and was contrary to the decision of this  

Court in Umesh Chandra Shukla v. Union of India and  

Ors. (1985) 3 SCC 721.  The High Court observed:

“……………………………………………………………………………………….  The present two writ petitioners were among the seven  successful  candidates in the written examination who  secured  the  cut  off  marks  in  each  of  the  papers  as  stipulated by the notification.  In view of the decision of   the selection committee to award moderation though  the writ petitioners still continued to be the successful   candidates  in  the  written  examination,  many  more  candidates artificially  became eligible for being called  for the viva-voce resulting in a heavier competition for   the petitioners at the second stage of selection process,  i.e. viva-voce.  In the above extracted passage of the  judgment (1985) 3 SCC 721, the Supreme Court held  that  the  candidates  who  secured  the  minimum  qualifying marks in the written examination acquire the  right to be included in the list of the candidates to be   called  for  viva-voce  examination  and  such  a  right  cannot be defeated by enlarging the said list including  certain other candidates who are otherwise ineligible.”

6. The  High  Court  accordingly  declared  the  grant  of  

moderation marks and all steps taken pursuant to the said  

decision bad in law.  The High Court observed:

“In the result, we are of the opinion that the decision of   the  Selection  Committee  to  grant  moderation  is  unsustainable  in  law.   Therefore,  all  further  steps  pursuant to the said decision would be unsustainable.   The  resultant  situation  is  that  only  the  seven  

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candidates who were initially found eligible on the basis   of  their  having  secured  the  cut  off  marks  in  the  examination should have been subjected to the viva- voce  examination  and  an  appropriate  decision  regarding  their  suitability  to  fill  up  the  originally   advertised 6 posts should have been taken by the 1st  

respondent in accordance with law.”

7. In compliance with the above direction, the merit list  

was revised again and the appellant placed at serial no.6 in  

the  open  merit  category.  Since  there  were  only  three  

vacancies in the said category which had been allotted to  

three candidates with higher merit than the appellant, the  

appellant could not be appointed.  Out of three vacancies  

meant for reserved category candidates one was filled up  

while  the  remaining  two  vacancies  meant  for  OBC  

candidates remained unfilled for want of candidates in the  

said category.   

8. It  was in the above backdrop that Writ  Petition No.  

20683  of  2009  filed  by  the  appellant  to  challenge  the  

selection  process  came  up  for  hearing  before  a  Single  

Bench of the High Court of Kerala and was dismissed by a  

short order stating that since the appellant was not one of  

the candidates who figured in the list of seven successful  

candidates qualified for consideration there was no question  

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of issuing any direction for appointment. The learned Single  

Judge observed:

“…………….The selection now stands narrowed down to  only  seven  persons.   The  petitioners  in  these  writ  petitions are not among them.  That being so, there is  no point in considering these writ petitions on merits.  Accordingly,  they  are  closed  leaving  open  the  other  contentions in these writ petitions, which have not been  considered  by  the  Division  Bench  in  Jayachandran’s  case (supra) to be raised and agitated appropriately, if   occasion arises in future.”

9. Aggrieved by the above order the appellant filed a writ  

appeal before the Division Bench of the High Court which  

too failed and was dismissed by the High Court.  The High  

Court was of the view that the contention urged in support  

of the challenge to the selection process did not have any  

foundation  in  the  pleadings  of  the  parties  and  even  

assuming that the challenge on the grounds urged before it  

was maintainable the fact that the writ petition had itself  

been filed nearly two years from the date of the issue of the  

notification  was  sufficient  for  the  High  Court  to  decline  

interference.  The present appeal questions the correctness  

of the above order before us.

10. Appearing for the appellant Mr. P.U. Dinesh, learned  

counsel strenuously argued that the High Court had failed  

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to  consider  the  effect  of  the  order  passed  by  it  in  Writ  

Petition No.16206 of 2010 in Jayachandran’s case. It was  

contended that  the  High  Court  had by  the  said  decision  

clearly directed that ten vacancies had to be filled up from  

out of seven candidates found eligible in terms of the select  

list.   Heavy  reliance  was,  in  support  of  that  contention,  

placed by the learned counsel upon the following passage  

appearing in the said judgment:

“However, in view of the subsequent decision of the 1st  

respondent to fill up 10 posts, the 1st respondent may  now  proceed  with  the  selection  from  out  of  the  7  abovementioned candidates in accordance with law by  recasting the select list. In view of the fact that some  of the 10 posts sought to be filled up are required to be  filled  up  by  candidates  belonging  to  reserved  categories, if on such an exercise any of the vacancies   of the abovementioned 10 posts sought to be filled up  cannot be filled up for lack of a suitable candidate, the   respondents  should  now  resort  to  the  procedure  contemplated under Rule 15(a) of the K.S. & S.S.R.  It  goes  without  saying  that  it  should  be  open  to  the  respondents  to  prescribe  such  cut  off  marks  as  the  minimum qualifying marks in such limited recruitment  as they deem fit and proper in the circumstances.  Both  the writ petitions are allowed as above.”

11. In as much as the High Court had remained oblivious  

of  the  above  direction  it  had  according  to  the  learned  

counsel  fallen  in  a  palpable  error  that  deserved  to  be  

corrected.  Alternatively, it was contended that even if the  

number of vacancies to be filled up were restricted to only  

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six the appellant  was entitled to an appointment  against  

one  out  of  the  two  unfilled  vacancies  meant  for  the  

reserved  category  candidates  having  regard  to  the  

provisions  of  the  Rules  which  according  to  the  learned  

counsel entitled him to such an appointment by diversion of  

the unfilled vacancies to the open merit category.  

12. Mr. P.P. Rao, learned counsel for the respondents, on  

the other hand, argued that the High Court was perfectly  

justified in dismissing the writ petition filed by the appellant  

as  none  of  the  grounds  which  were  set  out  in  the  writ  

petition  were  found  to  have  any  merit.   He  drew  our  

attention to the writ petition filed by the appellant and the  

grounds on which the selection process was challenged to  

contend that the challenge urged in support of the present  

appeal was never pressed into service or urged before the  

High Court.   It was not, therefore, argued Mr. Rao, open to  

the appellant to make out a new case in his favour before  

this  Court  on  which  the  High  Court  had  no  occasion  to  

express any opinion.  It was further contended that reliance  

upon the order passed by the High Court in Jayachandran’s  

case was misplaced  for  the  direction  issued  by the  High  

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Court  was  limited  to  filling  up  of  the  vacancies  “in  

accordance  with  law”.  This  implied  that  no  appointment  

against the available vacancies could be made if the same  

were not legally permissible. It was argued that subsequent  

to the judgment of the High Court in Jayachandran’s case,  

the High Court had passed a Full Court resolution by which  

the recommendations made earlier to the Government for  

filling up of the four vacancies that had occurred after issue  

of the recruitment notification by resort to Rule 39 of the  

K.S.  &  S.S.R.  Rules  was  withdrawn.   Copy  of  the  said  

resolution in the consequent letter issued by the High Court  

was  also  placed  on  record  by  the  learned  counsel,  in  

support of  the submission that after the quashing of  the  

moderation in Jayachandran’s case there was no room left  

for  filling  up  of  the  four  additional  vacancies  by  taking  

resort to Rule 39 of the Rules mentioned above.  That was  

so, for the obvious reason, that the candidates for whose  

benefit the said recommendation had been made had gone  

out  of  service  as a consequence of  the judgment  of  the  

High Court in Jayachandran’s case.  There was, therefore,  

neither any need nor any occasion for the Government to  

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invoke  this  power  under  Rule  39  of  the  Rules  as  

recommended by the High Court. The net result then was  

that  the  number  of  vacancies  required  to  be  filled  up  

continued to be only six, three out of which were to go to  

open merit candidates while the remaining would go to the  

candidates in the reserved category.

13. The short question that falls for determination in the  

above backdrop is whether the number of vacancies to be  

filled up was six as claimed by the High Court or ten as  

claimed by the appellant. While it is not disputed that the  

initial notification confined itself to filling up of six vacancies  

only,  confusion  relating  to  the  said  number  arose  on  

account of the High Court recommending invocation of Rule  

39  by  the  Government  to  avoid  a  situation  where  the  

candidates who had already been appointed pursuant to the  

selection process had to go out of service on account of the  

Court  directing preparation of a revised merit  list  on the  

basis of the unamended Rules.  It is common ground that  

the  vacancies  that  had  arisen  after  the  issue  of  the  

Notification  were  sought  to  be  filled  up  only  with  the  

solitary purpose of somehow saving the three candidates  

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from ouster who were bound to lose their jobs on account  

of the re-casting of the merit list.  All that the High Court  

intended to recommend to the Government was that four  

vacancies  that  were  available  in  the  cadre,  though  the  

same  had  arisen  after  the  issue  of  the  Recruitment  

Notification,  could  be  utilised  by  the  Government  if  it  

invoked its power under Rule 39.  The candidates facing  

ouster  could  then  be  continued  as  an  exception  to  the  

general  rule.  It  is  also  beyond  dispute  that  the  said  

recommendations could not have been accepted once the  

award of additional marks by way of moderation was struck  

down  by  the  High  Court  in  Jayachandran’s  case.  The  

inevitable  consequence  flowing  from  that  judgment  was  

that  anyone  who  had  found  place  in  the  merit  list  only  

because of the benefit  of moderation would have to lose  

that place and go out of the list.  Once that happened the  

question of retaining the services of the three candidates by  

invocation of powers vested in the Government under Rule  

39 did not arise.  The High Court was in the light of the  

subsequent  development  justified  in  recalling  the  

recommendations made by it which in turn had the effect of  

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limiting the number of vacancies to those originally notified.  

Mr.  Rao  was,  therefore,  right  in  contending  that  the  

proposed utilisation of four vacancies did not ipso facto add  

to  the  number  of  already  notified.  The  addition  was  

contingent upon the Government agreeing to exercise its  

power under Rules 39. Since the Government did not and  

could not possibly exercise the said power as a result of the  

quashing of the marks awarded by way of moderation the  

proposed addition of the vacancies to the number already  

notified became clearly infructuous. The High Court could  

and had rightly recalled the recommendations in the light of  

the said subsequent development.   

14. There is  another  aspect  to which we may advert  at  

this  stage  and  that  relates  to  the  question  whether  the  

Government could at all  exercise the powers vested in it  

under Rule 39 in a manner that would have had the effect  

of depriving candidates otherwise eligible for appointment  

against the said vacancies from competing for the same.  

Rule 39 reads as under:

“Notwithstanding anything contained in these rules  or  in  the  Special  Rules  or  in  any  other  Rules  or   Government Orders the Government shall have power  to deal with the case of any person or persons serving  

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in a civil capacity under the Government of Kerala or  any  candidate  for  appointment  to  a  service  in  such  manner a may appear to the Government to be just  and equitable:

Provided  that  where  such  rules  or  orders  are  applicable to the case of any person or persons, the  case  shall  not  be  dealt  with  in  any  manner  less  favourable to him or them than that provided by those  rules or orders.

This amendment shall be deemed to have come into  force with effect from 17.12.1958.”       

15. The  legal  position  regarding  the  power  of  the  

Government  to  fill  up  vacancies  that  are  not  notified  is  

settled by several  decisions of  this  Court.  Mr.  Rao relied  

upon  some  of  those  decisions  to  which  we  shall  briefly  

refer.  In  Rakhi Ray v. High Court of Delhi (2010) 2  

SCC 637, this Court declared that the vacancies could not  

be  filled  up  over  and  above  the  number  of  vacancies  

advertised as recruitment of the candidates in excess of the  

notified  vacancies  would  amount  to  denial  of  equal  

opportunity to eligible candidates violative of Article 14 and  

16(1) of the Constitution of India.  This Court observed:

“It is settled law that vacancies cannot be filled up over  and  above  the  number  of  vacancies  advertised  as  recruitment of the candidates in excess of the notified  vacancies is a denial being violative of Articles 14 and  16(1) of the Constitution of India.”

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16. In Hoshiar Singh v. State of Haryana 1993 Supp  

4) SCC 377, also this Court held that appointment to an  

additional  post  would  deprive  candidates  who  were  not  

eligible  for  appointment  to  the  post  on  the  last  date  of  

submission  of  the  applications  mentioned  in  the  

advertisement  and  who  became  eligible  for  appointment  

thereafter or the opportunity of being considered for such  

appointment.  This Court observed:

“The appointment on the additional posts on the basis   of  such selection and recommendation would deprive  candidates who were not eligible for appointment to the  posts  on the last  date for  submission  of  applications  mentioned  in  the  advertisement  and  who  became  eligible for appointment thereafter, of the opportunity  of being considered for appointment on the additional   posts.”  

17. In  State  of  Haryana  v.  Subhash  Chander  

Marwaha (1974) 3 SCC 220,  this  Court  held  that  the  

Government had no constraint to make appointments either  

because there are vacancies or because a list of candidates  

has been prepared and is in existence. So, also this Court  

in  Shankarsan Dash v. Union of India (1991) 3 SCC  

47, UPSC v.  Gaurav Dwivedi (1999) 5 SCC 180, All  

India  SC & ST Employees’  Association v.  A.  Arthur  

Jeen (2001) 6 SCC 380 and Food Corporation of India  

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v.  Bhanu  Lodh  (2005)  3  SCC  618,  held  that  mere  

inclusion of a name in the select list for appointment does  

not  create  a  right  to  appointment  even  against  existing  

vacancies and the State has no legal duty to fill up all or  

any of the vacancies.      

18. In the light of the above pronouncements the power  

vested in the Government under Rule 39 (supra) could not  

have been invoked for filling up the vacancies which had  

not been advertised and which had occurred after the issue  

of the initial advertisement much less could that be done  

for purposes of protecting the service of someone who had  

found  a  place  in  the  merit  list  on  account  of  additional  

marks given to him and who was bound to lose that place  

by reasons of the judgment of the Court.  

19. The upshot of the above discussion is that the number  

of vacancies notified for recruitment remained limited to six  

and did not get increased to ten as the condition precedent  

for such increase had failed not only because no decision  

was taken by the Government to invoke its power under  

Rule 39 but also because even if a decision had been taken  

the  same  would  have  had  no  effect  in  the  face  of  the  

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judgement  in  Jayachandran’s  case.  Besides  the  power  

vested  in  the  Government  was  not  exercisable  so  as  to  

utilise  subsequent  vacancies  for  the  purpose  of  saving  

someone who had no legitimate right to continue even after  

being removed from the merit list.

20. In the light of the above discussion paragraph 33 of  

the judgment in Jayachandran’s case does not come to the  

rescue  of  the  appellant’s  to  support  his  claim  for  

appointment. We fail to see any legal or equitable right in  

favour of the appellant to claim one of the four vacancies  

that  were  proposed  to  be  added  in  terms  of  the  

recommendation made by the High Court, even assuming  

that the appellant could urge before us a point which had  

never been urged before the High Court.

21. That brings us to the second limb of the submission of  

Mr. Dinesh that even if the number of vacancies is taken to  

be limited to six, he was entitled to be appointed against  

one of the unfilled vacancies meant for reserved category  

candidates. That submission, in our opinion, needs notice  

only to be rejected.  Firstly, because there is no foundation  

laid in the writ petition filed by the appellant nor was any  

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such point ever raised before the High Court. The result is  

that  the  unfilled  vacancies  meant  for  reserved  category  

candidates  and  those  that  have  become available  in  the  

merit  category  after  the  issue  of  the  initial  recruitment  

notification have already been notified. The appellant, it is  

not  in  dispute,  has  participated  in  the  fresh  selection  

process initiated by the High Court like many others who  

were  eligible  to  apply  against  the  vacancies  in  the open  

merit  and the reserved category. It  is,  therefore, neither  

proper nor feasible at this stage for this Court to interfere  

with the ongoing selection process.  The appellant it goes  

without  saying  would  get  a  fair  chance  like  every  other  

eligible candidate to compete for an appointment.  In the  

result this appeal fails and is hereby dismissed but in the  

circumstances without any orders as to costs.     

……………………..……….…..…J.                         (T.S. THAKUR)

………………………………………J.   (GYAN SUDHA MISRA)

New Delhi, February 27, 2012

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