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1996 Supreme(Ker) 545
High Court of Kerala
K.A. Abdul Gafoor, J.
Rajamohan - Appellant
Versus
The State Of Kerala & Ors - Respondent
O.P. No. 20020 of 1995
Decided On : 09-08-1996
The main legal point established in the judgment is that filling vacancies from an existing list for future vacancies would violate Art.14 and 16(1) of the Constitution of India.
Headnote:
Director of Extensions - Appointment Process - Kerala Agricultural University Act, 1971, S.36(1) - Hoshiar Singh v. State of Haryana AIR 1993 SC 2606, State of Bihar v. Madan Mohan Singh AIR 1994 S.C. 765, Ashok Kumar v. Chairman, B.S. Recruitment Board AIR 1996 SC 976, Prem Singh and others v. Haryana State Electricity Board and others JT 1996 (5) SC 219, Kerala Agricultural University v. Gopinathan Unnithan 1996 (2) KLT 344 - The court discussed the appointment process for the post of Director of Extensions under the Kerala Agricultural University Act, 1971, and the validity of the select list for filling vacancies. The court referred to various decisions to emphasize that a select list prepared pursuant to a notification specifying a certain number of vacancies can only be followed to fill up clear and anticipated vacancies, not future vacancies. The court held that filling vacancies from an existing list for future vacancies would violate Art.14 and 16(1) of the Constitution of India.
Fact of the Case:
The petitioners sought appointment to the post of Director of Extensions under S.36(1) of the Kerala Agricultural University Act, 1971. The select list for the post contained 3 names, and the person holding No. 1 was appointed. The petitioners contested the preparation of the select list and the application of communal rotation principles. The debate focused on how the upcoming vacancy should be filled, whether from the existing list or through re-notification.
Finding of the Court:
The court found that filling the upcoming vacancy from the existing list would violate Art.14 and 16(1) of the Constitution of India. The court emphasized that a select list can only be used to fill clear and anticipated vacancies, not future vacancies.
Issues: The issues revolved around the validity of the select list for filling vacancies, the application of communal rotation principles, and the procedure for filling the upcoming vacancy for the post of Director of Extensions.
Ratio Decidendi: The court held that filling vacancies from an existing list for future vacancies would violate Art.14 and 16(1) of the Constitution of India. The court referred to various decisions to support the principle that a select list can only be used to fill clear and anticipated vacancies, not future vacancies.
Final Decision: The court directed that the upcoming vacancy for the post of Director of Extensions should be notified afresh and subjected to a fresh selection, emphasizing that the University is bound by the mandates under Part.3 of the Constitution of India.
1. The petitioners in these Original Petitions aspire for appointment to the post of Director of Extensions, a post envisaged by S.36 (1) of the Kerala Agricultural University Act, 1971. The post was notified for selection as per Ext. P2 in the first Original Petition. Item No. 5 therein relates to the post of Director of Extensions. Number of post notified is only one. A select list was prepaid containing 3 names and the person holding No. 1 was appointed to the vacancy notified on 12th December 1995. The petitioner submit that the preparation of the select list was bad and each of them contend that they were also to be included in the list based on their qualification, experience, talent and performance in the interview. It was also contended by the petitioner in OP 20020/95 that the principles of communal rotation was not followed in the matter of preparation of select list or in making appointment.
2. The person appointed is to retire tomorrow from service on superannuation. Therefore, these questions need not be now agitated because a vacancy is to occur and that has to be filled up.
3. Now the debate is focused on how the vacancy shall be filled up, whether the list should be followed for that vacancy in order to appoint the rank No. 2 or 3 as the case may be in the list or the vacancy should be re-notified.
4. When the vacancy was notified, the procedure for appointment to the post was as per the notification dated 21st March 1995. This provides that the Vice Chancellor shall advertise the post and shall constitute a selection committee. He shall scrutinise the applications and prepare a list of eligible candidates to be called for interview. The selection committee shall prepare a list of persons in the order of merit to be considered for appointment. It shall be submitted to the executive committee for approval and appointment shall be only after such approval. It is stated in clause (e) of para.3(2) that the list shall be valid for one year. The list was published on 12th December 1995. The counsel for the Agricultural University and the 6th respondent in OP No. 20020/95 submits that period of the list has not expired and therefore that the vacancy that occurs tomorrow shall be filled up from out of the list by the University. The petitioners contend that as only one vacancy in the post of Director of Extensions was notified, further vacancies arising in the same post shall not be filled up from out of that list. In support of this contention they rely on the decision in Hoshiar Singh v. State of Haryana AIR 1993 SC 2606. It was held in para 10 thereof as follows:
"The learned counsel for these appellants have not been able to show that after the revised requisition dated January 24, 1991 whereby the Board was requested to send its recommendation for 8 posts, any further requisition was sent by the Director General of Police for a larger number of posts. Since the requisition was for eight posts of Inspector of Police, the Board was required to send its recommendations for eight posts only. The Board, on its own, could not recommend names of 19 persons for appointment even though requisition was for eight posts only because the selection and recommendation of larger number of persons than the posts for which requisition is sent. The appointment on the additional post 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 application mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. The High Court was, therefore, right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only was not legally sustainable."
