Kerala Munsiff Magistrate vacancies in 2020 cannot be filled in by candidates from 2019 selection: Supreme Court

"Candidates who have ranked lower in the 2019 selection and were unable to obtain appointments cannot appropriate the vacancies of a subsequent year to themselves."
Kerala Munsiff Magistrate vacancies in 2020 cannot be filled in by candidates from 2019 selection: Supreme Court
Justice DY Chandrachud, Justice Indira Banerjee

The Supreme Court on Monday set aside the Kerala High Court's decision to allow candidates who had selected in the 2019 Munsiff-Magistrate recruitment to be considered for vacancies arising in 2020, differing with the High Court's reading of Rule 7 of the Kerala Judicial Service Rules, 1991 (High Court of Kerala v. Reshma A. & Others Etc.).

"Vacancies for 2020 must be allocated to candidates who are duly selected in pursuance of the recruitment process for 2020. Candidates who have ranked lower in the 2019 selection and were unable to obtain appointments cannot appropriate the vacancies of a subsequent year to themselves. To allow such a claim would be an egregious legal and constitutional error", the Court said.

A Bench of Justices DY Chandrachud and Indira Banerjee, thereby, allowed an appeal moved by the Kerala High Court on the administrative side. The top court opined,

"To allow the concept of probable number of vacancies in Rule 7(1) to trench upon future vacancies which will arise in a succeeding year would lead to a serious constitutional infraction. Candidates who become eligible for applying for recruitment during a succeeding year of recruitment would have a real constitutional grievance that vacancies which have arisen during a subsequent year during which they have become eligible have been allocated to an earlier recruitment year. If the directions of the High Court are followed, this would seriously affect the fairness of the process which has been followed by glossing over the fact that vacancies which have arisen during 2020 will be allocated for candidates in the select list for the year 2019. Such a course of action would constitute a serious infraction of Articles 14 and 16 and must be avoided."

The case circled around the interpretation of Rule 7 of the Kerala Judicial Rules. Rule 7(1), which empowered the High Court to notify the "probable number of vacancies likely to be filled up."

Rule 7(2) as amended in 2019, provided that the merit list approved by the Governor 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

Factual Background

In this case, pursuant to a call for applications in February 2019, the appointment of 37 candidates (32 regular recruitments, 5 NCA recruits) as Munsiff Magistrate trainees in Kerala was notified on May 7, 2020 based on a February 20, 2020 merit list approved by the Governor.

Two petitions were moved in the Kerala High Court, thereafter, pointing out that several vacancies had since arisen for the post of Munsiff-Magistrate, which were not specified in the 2019 notification inviting applications. On an interpretation of Rule 7 of the Kerala Judicial Service Rules, it was submitted that all vacancies which arise for a period of one year after the approval of the merit list by the Governor are to be filled from the approved merit list of February 2020.

In other words, it was submitted that the appointments of Munsiff-Magistrates must not be limited to 32 vacancies and must take into account all other vacancies that have arisen or which may arise till 6 May 2021, that is, within one year from the date on which the merit list dated 7 May, 2020 was notified.

Opposing the prayer, the administrative side of the High Court argued that the 2019 notification was only issued for those vacancies available till December 31, 2019. Reliance was placed on the case of Malik Mazhar Sultan (3) v. UP Public Service Commission, in which the Supreme Court issued detailed directions specifying timelines for appointments of District Judges; Civil Judges (Senior Division) and Civil Judges (Junior Division).

During the pendency of the petitions before the High Court, a fresh notification dated June 30, 2020, was also issued, inviting applications to 47 probable regular posts of Munsiff-Magistrate. A corrigendum dated July 30, 2020 was issued deleting the term ‘probable’ from the number of regular vacancies notified.

What the High Court ruled

Rule 7(2) provides that vacancies existing and arising within one year from the date of approval of the merit list by the Governor are to be filled up from the select list, unless a fresh list comes into force before the lapse of a year, the High Court Single Judge found. Since a special rule governs matter, the High Court ruled that the appointment sought to the additional vacancies cannot be denied.

The High Court opined that only a probable number of vacancies were notified in 2019. As such, the appointing authority was directed to forward an additional list of candidates from the merit list dated February 20, 2020 to the Governor for approval and appointment to the posts of Munsiff-Magistrate.

The Division Bench upheld the this Single Judge ruling, effectively affirming that the merit list approved on 7 May, 2020 would be valid for vacancies till 6 May, 2021 or till a fresh list comes into force, whichever is earlier.

Why the Supreme Court set aside the High Court ruling

Selection process cannot ordinarily exceed number of advertised posts

Referring to various precedents, the Bench highlighted that "Where the authority which makes a selection advertises a specific number of posts, the process of selection cannot ordinarily exceed the number of posts which have been advertised."

It added:

"While notifying a process for appointment, the authority may take into consideration the actual and anticipated vacancies but not future vacancies. Anticipated vacancies are the vacancies which can be reasonably contemplated to arise due to the normal exigencies of service such as promotion, resignation or death. Hence, in notifying a given number of posts for appointment, the public authority may legitimately take into account the number of vacancies which exist on the date of the notification and vacancies which can reasonably be accepted to arise in the exigencies of the service. While the exact number of posts which may fall vacant due to circumstances such as promotion, resignation or death may be difficult to precisely determine the authority may make a reasonable assessment of the expected number of vacancies on these grounds. However, future vacancies conceptually fall in a distinct class or category. Future vacancies which arise during a subsequent recruitment year cannot be treated as anticipated vacancies of a previous selection year. Vacancies which would arise outside the fold of the recruitment year would not fall within the ambit of anticipated vacancies. For it is only the vacancies, actual and anticipated which would fall within the course of the selection or recruitment year that can be notified when the selection process is initiated. These are constitutional principles to which statutory edicts are subordinate."

The Supreme Court observed that the expression probable mentioned in Rule 7 cannot be interpreted "as a vague assessment of vacancies that isn’t founded in reason and can be altered without a statutorily prescribed cause."

The anomolies in following the Kerala High Court Judgment

Further, the Supreme Court reasoned that if the Kerala High Court's interpretation were accepted, it would lead to several anomolies, including the following:

  • The appointing authority would have to take into account vacancies which have arisen in the subsequent recruitment year, 2020, in making appointments for the recruitment year 2019. This, as a matter of first principle, is impermissible. The determination of probable vacancies for a particular year cannot cover, consistent with the mandate of Articles14 and 16, future vacancies of a subsequent year of selection.

  • Posts which have to be allocated for recruitment against the existing and anticipated vacancies for 2020 would have to be reduced by allocating them to recruitment year 2019. This would clearly be impermissible and bring uncertainty to the recruitment for subsequent years. It will cause serious prejudice to candidates who qualify in terms of eligibility during the recruitment process of 2020 by reducing the number of probable vacancies and adding them to the previous recruitment cycle.

  • Vacancies which have arisen during 2020 would be allocated to 2019. This could only be done if the vacancies for 2020 were anticipated to arise during 2019, which is not the case.

  • The High Court, on its administrative side, would have to carry out piece-meal training for candidates who are appointed to vacancies arising in the year after approval of the merit list. In this case, the approval of the Governor was received on 7 May 2020. If vacancies which arise between 7 May, 2020 and 6 May, 2021 are to be reckoned in making appointments for the 2019 process, the training of candidates who are appointed against the subsequent vacancies would take place piece-meal and in a sporadic manner after the initial batch of recruits has been sent on training.

The Court also rejected the idea of recruiting judicial trainees contingent upon possible future vacancies arising, who may be paid a stipend until their appointment, terming the same plainly unacceptable, likely to cause serious discontent among candidates and a burden on the exchequer which will have to pay up the stipend.

Harmonising Rule 7 of the Kerala Judicial Service Rules with Malik Mazhar Sultan's case

Since Rule 7(1) of the 1991 rules did not define what was meant by "probable vacancies", the Supreme Court read in in light of the decision in Malik Mazhar Sultan's case, to rule that in determining the probable number of vacancies likely to be filled up, the High Court has to take into account:

  • The existing number of vacancies;

  • Anticipated vacancies during the year arising due to retirements and other exigencies of service including promotion, death and resignation; and

  • Some candidates are to be included in the wait-list.

"The ambit of the probable number of vacancies in Rule 7(1) must be based on this assessment. In fact, as noted earlier, this was exactly what was done by the appellant", the Supreme Court said.

The Court added that the delay in recruitments on account of the COVID-19 pandemic cannot be invoked by the 2019 candidates (respondents) to make any claim for appointment to the vacancies that arose in 2020.

Read the Judgment:

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High Court of Kerala v. Reshma A. & Others Etc.pdf
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