SWETHA SASIKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners in both these Writ Petitions are seeking directions to the High Court to fill up all the vacancies of Munsiff-Magistrate existing as on 7.5.2020/during the currency of the rank list.

(2.) The High Court of Kerala issued notification dated 01.02.2019 (Ext.P1) inviting online applications from qualified candidates for appointment to the posts of Munsiff-Magistrate in the Kerala Judicial Service against NCA and regular vacancies. The number of vacancies notified was 37 (probable) including 1 vacancy reserved for persons with disabilities, for appointment by direct recruitment and recruitment by transfer. After the main examination including written test and interview, Ext.P2 list of candidates qualified for selection, was published on 20.02.2020. In the merit list for direct recruitment, there were 69 candidates and in the merit list for recruitment by transfer there were 2 candidates. The Government of Kerala thereafter as per gazette notification dated 07.05.2020 (Ext.P13 in W.P(C).10007/2020 and Ext.P5 in W.P(c).No.10361/2020) appointed 32 candidates as Munsiff/Magistrate trainees by direct recruitment for the year 2019. The Writ Petition is filed at this stage pointing out that several vacancies arose in the post of Munsiff/Magistrate on account of promotions, to the post of Sub Judges, consequential vacancies on account of promotions made against vacancies of District Judges, as on 07.05.2020 and thereafter. The petitioners claim that as per Rule 7 (2) of the Kerala Judicial Service Rules, 1961 as amended w.e.f 19.01.2019, the merit list prepared by the High Court, on approval by the Governor, shall be valid till the notified vacancies and the vacancies arising within one year from the date of approval of the list, are filled up. It is stated that the notification was issued on 01.02.2019 after the amendment rules came into force. Therefore, according to them, the judgment of the Apex Court in Malik Mazhar Sultan (3) v. U.P Public Service Commission [(2008) 17 SCC 703] as modified, read with the amended Special Rules mandate filling up of all the vacancies which existed as on 7.5.2020 when the Governor approved the list. In W.P(c).No.10361/2020, the petitioners claim that the vacancies which arise for the period of one year from 7.5.2020 shall also be filled up from the present rank list. Therefore, according to them, limiting of appointments to 32 vacancies only as done in the notification dt.7.5.2020 is contrary to the Special Rules.

(3.) The High Court has filed a statement. According to the High Court, the Kerala Judicial Service Examinations is regulated not only by the Special Rules but also by the guidelines and directions issued by the Honourable Supreme Court. Ext.P1 notification was issued on 01.02.2019 and the merit list was published on 20.02.2020. Though the petitioners were qualified in the examination, they were not included in the merit list for direct recruitment. It is further stated that the High Court had taken steps to conduct the selection procedure in tune with the time schedule fixed by the Apex Court in its order dated 04. 01.2007 in the Malik Mazhar Sultan (3) (supra) to the maximum extent possible and regular status reports are being filed regarding the conduct of the examinations. As per the time schedule fixed, the date for issuing appointment letter by the competent authority for all the vacant posts is on 1 st December; therefore no deviation is permissible without the permission of the Apex Court. It is stated that at times the selection lags behind the schedule because of reasons beyond the control of the High Court; but no changes are made in the manner of calculating the vacancies; vacancies upto 31st December of the year in which the notifications were issued, alone were notified and only those notified vacancies were filled up. It is stated that in various judgments the Supreme Court has held that no vacancy over and above the number of notified vacancies shall be filled up. Regarding the provisions contained in Rule 7 (2) of the Special Rules it is stated that at the time when the proposal for the amendment was submitted in 2015, the practice was to notify the vacancies for the period upto 31 st December of the subsequent year. In the 2013 selection the vacancies arising upto 31.12.2014 were notified. The merit list of the 2013 selection could be approved by 31.12.2013 and therefore the vacancies arising upto 31.12.2014 could be filled up. It is stated that such procedure was adopted in view of the fact that the selection procedure along with training would be completed only in two years and Judicial Officers would be available only after that. In the 2016 selection the Munsiff Magistrates' Recruitment Committee resolved that only those vacancies arising upto 31.12.2016 need be notified in view of the orders passed by the Apex Court on 04.01.2007. In 2017, 34 vacancies were notified in the notification issued on 07.11.2017; merit list was published on 17.12.2018 and candidates were appointed on 29.01.2019. Since sufficient time was not available to issue notification in 2018, the vacancies which arose in 2018 and upto 31 st December 2019 were notified in the notification dated 01.02.2019. As per the guidelines of the Supreme Court, 37 regular vacancies (probable) were notified. It is stated that all efforts were taken for the conduct of the selection procedure within the time frame fixed by the Hon'ble Supreme court to the maximum extent possible. According to them, if all the vacancies for the period of one year from the date of approval by the Governor are filled up from 2019 selection, the vacancies available for the next selection will be very few. It is stated that vacancies which arose after 31.12.2019 are to be filled up by the next recruitment for which steps were delayed on account of the pandemic. According to them filling up of any further vacancy would amount to violation of Articles 14 and 16 of the constitution, as held by the Apex Court in a series of decisions, as the number of vacancies notified is only 37.