IMPORTANT POINTS
The statutory rule has to be followed by the appointing and recruiting authority-The amendment to the Rule was not considered when the notification was issued, for the reason of the rule running contrary to the Supreme Court directions-Rule 7(2) does not run counter to the directions of the Supreme Court. The Rule provides for keeping a select list valid for a period of one year from the date of its approval by the Governor or till the date of publication of the subsequent select list, whichever is earlier. The notification issued on the basis of the Special Rules specifically indicate the vacancies and qualify it as probable. The qualification as "Probable", in brackets, seen from the notification can only be understood as being in harmony with the rule position which permits appointment from the select list to anticipated vacancies.

JUDGMENT :

Vinod Chandran, J.

Whether Rule 7 of the Kerala Judicial Service Rules, 1991 as amended in the year 2019, runs counter to the directions issued in Malik Mazhar Sultan v. U.P. Public Service Commission [2008) 17 SCC 703]? If not, whether the party respondents/writ petitioners and other similarly placed candidates, who figure in the merit list approved by the Governor, could be appointed to the vacancies arising within one year of the date of approval, in excess of the vacancies notified? These are the two questions arising for our consideration in the appeal. The learned Single Judge directed that an additional list be forwarded to the Governor for approval and appointment as Munsiff-Magistrates, in accordance with the rules, from the merit list dated 20.02.2020. The High Court is in appeal from the directions issued by the learned Single Judge.

2. Sri.Elvin Peter, learned Standing Counsel appearing for the appellant, would invite us to the various Record of Proceedings of the Hon'ble Supreme Court and specifically refer to Malik Mazhar Sultan and Malik Mazhar Sultan v. U.P. Public Service Commission [(2009) 17 SCC 24]. The Hon'ble Supreme Court while laying down a time line for filling up the vacancies arising in the Higher and Subordinate Judicial Service, has specifically prescribed the manner in which the recruitment is to be carried out, from initial notification to the eventual appointment. The directions issued require notification of the vacancies at the beginning of an year including, (i) existing vacancies, (ii) anticipated vacancies in the selection year and (iii) vacancies that my arise due to unprecedented circumstances like death, promotion etc:; the third category being restricted to 10% of the number of vacancies.

3. Malik Mazhar Sultan, [(2009) 17 SCC 24] is referred only to point out that the restriction in the third category has been modified insofar as providing for future vacancies to the extent of 10% of the existing vacancies and not the sanctioned posts. Hence, only those vacancies which exist and that arise within one year as also 10% of such vacancies could be notified for selection. Notification of vacancies arising later, even as per the statutory rules would run counter to the directions issued by the Hon'ble Supreme Court. Appointments cannot be made, it is asserted, in accordance with the rules which run counter to the directions of the Supreme Court having binding effect under Articles 141 & 142 of the Constitution of India.

4. The further impediment in making appointments is that such anticipated vacancies, as provided for in the Rules were never notified when the applications were called for. It is argued, based on the counter-statement filed on behalf of the appellant in the writ petition, that the amendment brought in, to the Rules of 1991 in the year 2019 was proposed in 2015. Prior to that, the rule provided for the list published, to have validity for three years from the date of its approval. In the year 2016, the Committee of Judges of the High Court resolved to confine the selection to the vacancies which arise only upto 31st December of that year. The same was followed in the year 2017 and 2019. The pre-amended Rule, it is asserted, was binding only upto 2016 and thereafter it lost its relevance, even when the amendment was brought in. The resolution of the Committee of Judges in the year 2016, also is justified on the ground of it being taken to bring the recruitment process in concurrence with the directions of the Hon'ble Supreme Court in Malik Mazhar Sultan.

5. The vacancies notified are that existing as on 01.01.2019 and those anticipated to arise by 31.12.2019 and 10% of such vacancies. The notification specifically indicated 8 No Candidate Available' [NCA] vacancies and 37 probable' vacancies, totaling 45. Out of the 37 probable vacancies, one is set apart for Persons