IMPORTANT POINT
Appointments made in excess of vacancies advertised will be illegal.

JUDGMENT

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 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.

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.

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 have to be elbowed out of service in view of the revised select list. The C