1. Dispute concerning the non-reporting of vacancies for Medical Officer posts to the Public Service Commission during the currency of a ranked list. (Para 4 , 5 )
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2021 Supreme(SC) 777
SUPREME COURT OF INDIA
(From the High Court of Kerala at Ernakulam)
UDAY UMESH LALIT, S. RAVINDRA BHAT, BELA M. TRIVEDI, JJ.
The Director of Indian System of Medicine and Another – Appellants
Versus
Dr. Susmi C.T. and Another – Respondents
Civil Appeal No. 7537 & 7544 of 2021, S.L.P. (C) Nos. 24214-24221 of 2019
Decided On : 08-12-2021
Advocates appeared:
For the Parties :G. Prakash, Priyanka Prakash, Beena Prakash, Vipin Nair, P.B. Suresh, Arindam Ghosh, Karthik Jayashankar, Anshuman Bahadur, Prakash Baghel, Roy Abraham, Reena Roy, Seema Jain, Akhil Abraham, Himinder Lal, P. A. Noor Muhamed, Giffara S., Bilal Niamathulla, Ruxana P.N., Jishnu M.L., Prakash Ranjan Nayak, Sanand Ramakrishnan, Advocates
For the Parties :G. Prakash, Priyanka Prakash, Beena Prakash, Vipin Nair, P.B. Suresh, Arindam Ghosh, Karthik Jayashankar, Anshuman Bahadur, Prakash Baghel, Roy Abraham, Reena Roy, Seema Jain, Akhil Abraham, Himinder Lal, P. A. Noor Muhamed, Giffara S., Bilal Niamathulla, Ruxana P.N., Jishnu M.L., Prakash Ranjan Nayak, Sanand Ramakrishnan, Advocates
IMPORTANT POINT
State or any public agency, cannot be precluded from challenging a judgment on the ground that it approaches this court, filing an appeal against only one party – Even if in that case, normative basis of judgment under appeal is disturbed and issue concerns a matter having public ramifications, final judgment would bind all concerned.
Headnote:
Service Law – Appointment – Reporting of vacancies – Candidates can expect that their claim vacancies which occur during currency of a ranked list, upon their being advised by KPSC, would be considered – KPSC shall advise candidates for all vacancies reported and pending before them and the vacancies which may be reported to them for period during which ranked lists are kept alive – Right of those who find a position in ranked list, is to be advised against vacancies which arise during currency of list and which are reported – As against vacancies that are reported to KPSC, that candidates have some semblance of a right – KAT should not have enquired into the matter, once it was reported that all vacancies that could be reported, had been reported – State or any public agency, cannot be precluded from challenging a judgment on the ground that it approaches this court, filing an appeal against only one party – Even if in that case, normative basis of judgment under appeal is disturbed and issue concerns a matter having public ramifications, final judgment would bind all concerned – Judgment of High Court and orders of KAT set aside. [Kerala Public Service Commission Rules of Procedure, 1976 – Rules 13 and 14] (Paras 18, 21, 24, 26 and 27)
Facts of the case:
Appellant (Director) is aggrieved by impugned final judgment and order dated 24.07.2019, as well as orders dated 02.07.2019 and 19.06.2019 passed by the High Court of Kerala at Ernakulam. The Director had filed petitions challenging orders of Kerala Administrative Tribunal (KAT) which had required reporting of 28 vacancies in the post of Medical Officer (Ayurveda), Assistant Insurance Officer in the Department of Indian System of Medicine.
Findings of Court:
Impugned judgment and orders of High Court cannot be sustained. The said judgment and order, as well as orders of the KAT are, accordingly set aside.
Result : Appeals allowed.
Legal Category Hierarchy
- administrative law
- practice and procedure
Table of Contents
2. Whether promotions to higher grades created reportable vacancies in the entry cadre or whether the department had already reported all available vacancies. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 )
3. The High Court erred in dismissing petitions on technicalities; the Tribunal ignored cadre strength and evidence showing the department regularly reported vacancies. (Para 21 , 22 , 23 , 26 )
4. Candidates on a ranked list have no indefeasible right to appointment for vacancies not reported, provided the State's decision not to fill them is bona fide. (Para 25 , 26 )
5. Impugned judgments and orders of the High Court and the Administrative Tribunal set aside; appeals allowed. (Para 27 )
6. Do candidates on a ranked list have an indefeasible right to be appointed to notified vacancies?
No. A notification is an invitation to apply. Unless recruitment rules specify otherwise, the State is not legally duty-bound to fill all vacancies, provided the decision is taken bona fide for appropriate reasons and without discrimination. (Para 25 )
7. Can candidates claim a legal right to be appointed against vacancies that were not reported to the Public Service Commission?
Candidates generally have no right per se to vacancies not reported. While they may seek judicial remedy if the state is arbitrary or lethargic, the court must consider the state's response and explanation. (Para 26 )
8. Does the promotion of officers to a higher grade automatically create vacancies in the entry-level cadre?
Not necessarily. If the department is already in excess of its sanctioned cadre strength, promotions to higher grades may not result in new vacancies in the entry cadre. (Para 22 , 26 )
9. Should a court dismiss a state's challenge on technical grounds like laches if the issue has significant public ramifications?
No. If the normative basis of a judgment is disturbed and the issue involves public ramifications, such as recruitment, the court should examine the merits rather than relying on technicalities like laches or the finality of orders against some parties. (Para 23 )
ORDER :
1. Leave granted.
2. The appeals were heard finally with the consent of the counsel for the parties.
3. The appellant (hereafter referred to as the “Director”) is aggrieved by the impugned final judgment and order dated 24.07.20191 [R.P. No. 657/2019, R.P. No. 659/2019, R.P. No. 660/2019, O.P. (KAT) No. 286/2019 and O.P. (KAT) No. 287/2019] as well as orders dated 02.07.20192 [O.P. (KAT) No. 256/2019] and 19.06.2019 3 [O.P. (KAT) No. 17/2019 and O.P. (KAT) No. 24/2019] passed by the High Court of Kerala at Ernakulam.
4. The Director had filed petitions challenging orders of the Kerala Administrative Tribunal (hereafter referred to as the “KAT”) which had required the reporting of 28 vacancies in the post of Medical Officer (Ayurveda), Assistant Insurance Officer in the Department of Indian System of Medicine (hereafter referred to as the “posts”).
5. The Kerala Public Service Commission (hereafter referred to as the “KPSC”) issued a notification on 19.11.2014 eliciting applications from amongst eligible candidates for the posts. The first respondent along with several others applied for these posts. These candidates were included in the ranked list published on 19.11.2014. In accordance with the rules governing KPSC, the Department in question i.e. Indian System of Medicine and Insurance Medical Service (hereafter referred to as the “department”) - had to report vacancies for the duration in which the list was operative. According to the procedure prescribed by those rules, vacancies had to be notified and candidates advised, after which they were to be appointed. On 14.11.2017 the first respondent and others (hereafter referred to as the “applicants”) preferred proceedings under Section 19 of the Administrative Tribunal Act before the KAT4 [O.A. No. 2816/2017]. The applicants sought the direction to the department to report 65 vacancies of the posts to KPSC before the list was to expire i.e. on or before 18.11.2017. An interim application seeking a direction to advice 28 vacancies remaining to be reported to the KPSC, was sought. The interim order was granted on 14.11.2017. Like the respondent in this case, other applicants also moved the KAT with different applications. These were considered and disposed of on 03.08.2018. The KAT took into consideration the pleadings and material before it, as well as the contentions urged. It was contended that about 33 anticipated vacancies were reported on 08.11.2017 and 28 provisional vacancies also needed to be reported which was taken care of by the interim order dated 14.11.2017. The KAT accepted an argument on behalf of the applicants that by a promotion order dated 20.06.2017, eligible Medical Officers (Ayurveda) were promoted as Senior Medical Officers, as a result of which 28 vacancies arose which had to be reported. In addition, the KAT also noted 15 other vacancies had to be treated as additional (over and above the 28 vacancies reported in terms of its interim order) and that the KPSC was bound to select candidates as against those vacancies.
6. The Department felt aggrieved and approached the Kerala High Court by filing O.P. (KAT) No. 256/2019. The High Court dismissed the Writ Petition on 02.07.2019, holding that it had been filed belatedly.
7. As far as the other petitions filed by the department were concerned, the High Court took note of the fact that in some cases Review Petitions were filed and after their dismissal Writ Petitions were preferred before it, and in some5 [O.A. No. 2342/2017, 2212/2017, 2612/2017 and 2631/2017] the orders remained unchallenged. As a consequence, the High Court held that the finality of the Tribunal’s order bound the department and consequently it could not maintain the Writ Petitions which were dismissed.
8. It is firstly urged by Mr. Pallav Sisodia, senior counsel on behalf of the Director, that the High Court erred in rejecting the Department’s petition on hyper-technicalities. It is pointed out that when the first Writ Petition O.P. No.
