Hareendran Nair and Another Vs High Court of Kerala and Another

P.A. Mohammed, J.@mdashThis 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 Ext.P1 notification dated 18-10-1995. According to them, Ext.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 the appellants 1 and 2 are 12 and 39 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''). Ext.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 21-7-1996 and it was valid for two years, that is to say, it would expire on 20-7-1998, so points out by the appellants. The counsel for the appellants contends that the number of vacancies to the post of Munsiff-Magistrate as per Ext.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 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 Ext.P2 list of candidates found suitable.

2. The second respondent Registrar filed a counter-affidavit opposing the aforesaid claim. His case can be summarised briefly thus: The probable number of vacancies was 20, out of which 15 by direct recruitment from the Bar and 5 by direct recruitment by transfer in accordance with Rule 5(3) of the rules. Annexure A appended to letter dated 28-6-1996 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 2 service candidates) was prepared and forwarded for approval. The Government issued an order, Ext.R2(b) dated 29-7-1996 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.

3. 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 the 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 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 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 Ext.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. & S.S.R. have to be observed while fixing the quota for direct recruitment.

4. Notwithstanding the above, the counsel for the appellant relies on the decision of the Supreme Court in Prem Singh and Others Vs. Haryana State Electricity Board and Others, 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.

... 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 taking 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 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.

5. Yet another decision of the Supreme Court relied on by the counsel for the appellants in Benny v. Registrar of Co-operative Societies (1998 (1) KLT 858 (SC) relating to the recruitment to the post of Clerk in the District Co-operative Bank, Kottayam. The counsel relied on the following observation contained in the said judgment.

It is well known that during the time when an advertisement is issued and by the time when process of selection starts and ultimately appointed 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 other 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 in excess of the vacancies notified and the appointment was made only to the notified vacancies for which alone select list was prepared.

6. It is no doubt true that the appellants'' names were included in Ext.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 Ext.P2 list does not confer any legal right on appellants. In Shankarsan Dash Vs. Union of India, the Supreme Court held that the mere inclusion in the list does not confer any right or claim of appointments. In State of Bihar and Others Vs. Secretariat Assistant Successful Examinees Union 1986 and Others, 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: I.J. Divakar and Others Vs. Government of Andhra Pradesh and Another, and N.T. Bevin Katti, etc., Vs. Karnataka public Service Commission and others, . 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.