Supreme Court Clarifies Appointment Rules for Munsiff-Magistrates in Kerala: High Court of Kerala vs. Reshma A. & Others (2021)

Introduction

Date of the Judgment: 11 January 2021

Citation: (2021) INSC 14

Judges: Dr Dhananjaya Y Chandrachud, J and Indira Banerjee, J

Can a select list for judicial appointments be used to fill vacancies that arise after the notification of the selection process? The Supreme Court of India recently addressed this important question in a case concerning the appointment of Munsiff-Magistrates in Kerala. This judgment clarifies the extent to which a select list can be used to fill vacancies that arise after the initial notification, emphasizing the importance of adhering to the principles of fair and equal opportunity in public employment. The Supreme Court, in this case, has clarified the interpretation of the Kerala Judicial Service Rules, 1991, specifically concerning the filling of vacancies for the post of Munsiff-Magistrate. The bench comprised of Dr. Dhananjaya Y Chandrachud, J and Indira Banerjee, J.

Case Background

On 1 February 2019, the High Court of Kerala issued a notification for the appointment of Munsiff-Magistrates, specifying 37 “probable” vacancies, including one for persons with disabilities, and eight vacancies under the “No Candidates Available” (NCA) category. Following a competitive examination, a merit list was published on 20 February 2020. The Governor of Kerala approved the list on 7 May 2020, and 32 candidates were appointed against regular vacancies and 5 against NCA vacancies. Subsequently, two petitions were filed in the High Court, claiming that additional vacancies had arisen after 7 May 2020, which should also be filled from the same merit list, based on Rule 7(2) of the Kerala Judicial Service Rules, 1991, as amended in 2019.

The High Court of Kerala argued that appointments should be limited to the notified vacancies, citing the directions of the Supreme Court in Malik Mazhar Sultan (3) v. Uttar Pradesh Public Service Commission [(2008) 17 SCC 703], which mandates that notifications are for vacancies available until 31 December of the notification year. However, the petitioners contended that Rule 7(2) requires all vacancies arising within one year of the merit list approval to be filled from that list. A Single Judge of the High Court ruled in favor of the petitioners, stating that all vacancies arising within one year of the merit list approval should be filled from the same list. This decision was upheld by a Division Bench of the High Court, which led to the current appeal before the Supreme Court.

Timeline

Course of Proceedings

The Single Judge of the High Court held that Rule 7(2) of the Kerala Judicial Service Rules, 1991, mandates that vacancies arising within one year from the date of approval of the merit list must be filled from the same list, unless a fresh list is notified before the lapse of a year. The Single Judge rejected the High Court’s argument that appointments should be limited to the number specified in the notification, stating that the term ‘probable’ indicated a possibility of variance. The Single Judge also held that denying appointments to additional vacancies would violate Articles 14 and 16 of the Constitution.

The Division Bench upheld the Single Judge’s decision, stating that Rule 7(2) makes the merit list valid for notified vacancies and vacancies arising within one year from the date of approval by the Governor. The Division Bench also noted that the operation of the Kerala Rules was not in contradiction with the guidelines in Malik Mazhar Sultan (3), as the Supreme Court had directed that selections be made according to the existing judicial service rules of the states. The Division Bench interpreted the term ‘probable’ vacancies as indicating a possibility of variance between actual and advertised vacancies.

Legal Framework

The Kerala Judicial Service Rules, 1991, issued under Articles 234 and 235 of the Constitution and Section 2(1) of the Kerala Public Services Act, 1968, govern appointments to the Kerala Judicial Service. Rule 7 outlines the process for preparing lists of approved candidates and the reservation of appointments.

Originally, Rule 7(2) stated:

“The list approved by the Governor shall come into force from the date of the approval and shall remain in force for a period of three years or until a fresh approved list is prepared, whichever is earlier.”

The 2019 amendment substituted Rule 7(2) with:

“(2) The merit list prepared by the High Court shall be forwarded for the approval of the Governor. The list approved by the Governor shall come into force from the date of the approval and shall be valid till the notified vacancies and the vacancies that may arise within one year from the date of approval of the list, are filled up or a fresh list comes into force, whichever is earlier.”

Article 234 of the Constitution empowers the Governor to make appointments to the judicial service of a State, in accordance with rules made after consulting with the State Public Service Commission and the High Court. Article 235 vests control over district courts and subordinate courts in the High Court.

Arguments

The appellant, the High Court of Kerala, argued that Rule 7(2), if interpreted literally, would conflict with the directions in Malik Mazhar Sultan (3), which mandates an annual selection process and that appointments should be made only against notified vacancies. The appellant contended that the term ‘probable’ allows for minor adjustments in vacancies due to unforeseen circumstances, but not for filling vacancies beyond the recruitment year. The appellant also argued that filling vacancies beyond those notified would violate Articles 14 and 16 of the Constitution, denying equal opportunity to those who become eligible in subsequent years. The appellant relied on Rakhi Ray v. High Court of Delhi [(2010) 2 SCC 637], Prem Singh & Ors v. Haryana State Electricity Board & Ors [(1996) 4 SCC 319], and Bedanga Talukdar v. Saifudaullah Khan & Ors [(2011) 12 SCC 85] to support their claim that appointments cannot exceed the notified vacancies.

The respondents argued that Rule 7(2), as amended, specifically allows for filling vacancies arising within one year of the merit list approval from the same list. They contended that the term ‘probable’ was consciously deleted from the 2020 notification, indicating that the number of vacancies was not definite. The respondents also argued that the Kerala Rules, 1991, have not been challenged as unconstitutional, and the High Court cannot claim its own rules are in violation of Articles 14 and 16. They further stated that there has been inordinate delay in filling judicial vacancies, and if the 2019 merit list is not used, the vacancies will remain unfilled until 2023. The respondents relied on Virender S Hooda v. State of Haryana [(1999) 3 SCC 696] to support their claim that appointments can be made against vacancies arising after the merit list is notified. They also cited Hirandra Kumar v. High Court of Judicature at Allahabad (2019 SCC Online SC 254) to emphasize that selection and appointment to judicial posts have to be conducted strictly in adherence to existing judicial service rules.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for determination:

1. Whether Rule 7 of the Kerala Rules, 1991, is contrary to the directions of this Court in Malik Mazhar Sultan (3); and
2. Whether the respondents and similarly placed candidates who find place in the merit list approved by the Governor can be appointed to vacancies arising within one year from the date of approval of the merit list, in excess of those specified in the notification.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

Judgment

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to balance the directions in Malik Mazhar Sultan (3) with the constitutional mandate of equality in public employment under Articles 14 and 16. The Court emphasized that while the State Judicial Service Rules are important, they must be interpreted in a manner that is consistent with the Constitution and the principles of fairness and equal opportunity. The Court also considered the practical implications of its decision, noting that allowing appointments beyond the notified vacancies would create administrative difficulties and would be unfair to candidates who become eligible in subsequent years.

The court considered alternative interpretations of Rule 7(2), including the respondents’ argument that all vacancies arising within one year of the merit list approval should be filled from the same list. However, the court rejected this interpretation because it would violate the principles of equality and fairness in public employment, and would be inconsistent with the annual selection process mandated by Malik Mazhar Sultan (3). The court also considered the practical difficulties of implementing the respondents’ interpretation, including the logistical challenges of training candidates appointed against vacancies that had not yet arisen.

The court’s decision was based on a harmonious interpretation of Rule 7(1) and 7(2) of the Kerala Rules, 1991, the directions in Malik Mazhar Sultan (3), and the constitutional principles of equality in public employment. The court held that while the State Judicial Service Rules are important, they must be interpreted in a manner that is consistent with the Constitution and the principles of fairness and equal opportunity. The court also emphasized that appointments cannot exceed the number of vacancies notified, as it would violate Articles 14 and 16.

The court quoted the following from the judgment:

“The existing number of vacancies is an objective fact which is known to the particular High Court. Anticipated vacancies are those which arise as a part of the normal exigencies of service in the ensuing year due to factors such as promotion, death or resignation from service.”

“The expression ‘probable’ means what is anticipated, expected and likely. The expression thus comprehends the existing vacancies and those which are anticipated due to retirement, promotion, death or resignation and to which some vacancies can be added to incorporate imponderable events during the recruitment process.”

“The solution which has been suggested by theHigh Court of Kerala is that the expression ‘probable’ in Rule 7(1) means the number of vacancies anticipated for the recruitment year, and not future vacancies of subsequent years.”

Decision

The Supreme Court allowed the appeal filed by the High Court of Kerala and set aside the judgment of the Division Bench of the High Court. The Supreme Court held that the appointments could not exceed the number of vacancies notified in the advertisement and that the term ‘probable’ refers to vacancies anticipated for the recruitment year, not future vacancies of subsequent years. The Court directed the High Court to take steps to fill the notified vacancies in accordance with the merit list and to initiate a fresh recruitment process for subsequent vacancies.

The Supreme Court held that the High Court of Kerala was justified in its interpretation of Rule 7(1) of the Kerala Judicial Service Rules, 1991, and that the High Court is not bound to make appointments to vacancies arising after the recruitment year.