Supreme Court Clarifies Reporting of Vacancies to Public Service Commission: Director of Indian System of Medicine vs. Dr. Susmi C.T. (2021)

Date of the Judgment: December 8, 2021
Citation: 2021 INSC 757
Judges: Uday Umesh Lalit, J., S. Ravindra Bhat, J., Bela M. Trivedi, J. (authored by S. Ravindra Bhat, J.)
Can a government department be compelled to report vacancies to the Public Service Commission based on anticipated promotions, or is it sufficient to report only existing vacancies? The Supreme Court addressed this question in a recent case concerning the Department of Indian System of Medicine in Kerala. The core issue revolved around whether the Kerala Administrative Tribunal (KAT) was correct in directing the department to report 28 additional vacancies to the Kerala Public Service Commission (KPSC), despite the department’s claim that all existing vacancies had already been reported. This judgment clarifies the obligations of government departments regarding reporting vacancies to the Public Service Commission. The bench was composed of Justices Uday Umesh Lalit, S. Ravindra Bhat, and Bela M. Trivedi, with the opinion authored by Justice S. Ravindra Bhat.

Case Background

The case originated from a dispute regarding the reporting of vacancies for the posts of Medical Officer (Ayurveda) and Assistant Insurance Officer in the Department of Indian System of Medicine. The Kerala Public Service Commission (KPSC) issued a notification on November 19, 2014, inviting applications for these posts. Several candidates, including the first respondent, applied and were included in the ranked list published on the same date. According to the rules, the department was required to report vacancies to the KPSC during the list’s operational period. The applicants approached the Kerala Administrative Tribunal (KAT) on November 14, 2017, seeking a direction to the department to report 65 vacancies before the list’s expiry on November 18, 2017. An interim order was granted on the same day, directing the reporting of 28 vacancies. The KAT, in its final order on August 3, 2018, considered that 33 anticipated vacancies were reported on November 8, 2017, and that 28 provisional vacancies needed to be reported as per the interim order. The KAT also accepted the applicants’ argument that 28 additional vacancies arose due to a promotion order dated June 20, 2017, where Medical Officers (Ayurveda) were promoted to Senior Medical Officers. Additionally, the KAT noted 15 other vacancies that needed to be filled.

Timeline

Course of Proceedings

The Department of Indian System of Medicine, aggrieved by the KAT’s order, approached the High Court of Kerala. The High Court dismissed the department’s writ petition (O.P. (KAT) 256/2019) on July 2, 2019, citing a delay in filing. Other petitions filed by the department were also dismissed, with the High Court noting that in some cases, review petitions were filed and dismissed, and in others, the orders remained unchallenged, thus attaining finality. The High Court held that the finality of the Tribunal’s order bound the department and consequently dismissed the Writ Petitions.

Legal Framework

The Supreme Court examined the Kerala Public Service Commission Rules of Procedure, 1976, specifically Rules 13 and 14. Rule 13 states that a ranked list remains in force for one year, extendable up to three years, or until a new list is published. Rule 14 mandates that the KPSC “shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive.” The court emphasized that the KPSC’s obligation to advise candidates arises only after the vacancies are reported by the concerned department.

The relevant rules are reproduced below:

“13. The ranked lists published by the Commission shall remain in force for a period of one year from the date on which it was brought into force provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years whichever is earlier:
Provided that the above rule shall not apply in respect of ranked lists of candidates for admission to Training Course that leads to automatic appointment to Services or posts and that in such cases the Ranked Lists shall …in force after one year from the date of finalisation of the Ranked Lists or after one month from the date of commencement of the course in respect of the last batch selected from the list within a period of one year from the date of finalisation of the ranked lists whichever is later.
Provided further that the provisions of the proviso above mentioned shall not be applicable for the selection for admission to the Forest Rangers Course and also for admission to the Diploma Course in Forestry for which selections have to be made annually in accordance with the instructions of the Government of India issued from time to time. For these selections, the Ranked Lists will be in force only for a period of three months from the date of finalisation of the Ranked Lists or one month from the date of commencement of the course whichever is later.
Provided further that the Commission may take steps for the preparation of a new ranked list wherever necessary even before the expiry of the period of one year of the ranked list, by inviting applications but that the ranked list prepared in pursuance of the said notification shall be brought into force only after the expiry of the period of one year of the existing ranked list.
Provided further that a ranked list from which no candidate is advised during the period of one year from the date on which it was brought into force shall be kept in force till the expiry of three years from the said date and in a case where no candidate is advised from the ranked list till the expiry of the said period of three years, the duration of the ranked list shall be extended by the Commission for a further period of one year or till at least one candidate is advised from the list whichever is earlier.
Provided further that if the Commission is satisfied of the existence of a general ban not exceeding one and a half year in the aggregate duration declared by the Government on the reporting of vacancies, to the Public Service Commission, they shall have the power to keep alive the ranked lists which are normally due to expire during the period of the above said ban or within 7 days of the cessation of the ban, for a further period of 30 days from the date of cessation of ban. If the commission is satisfied of the ban and its consequences they shall issue a notification keeping alive the ranked list in the above manner and shall advise candidates to the vacancies which actually arose during the normal period of validity of the ranked list and certified to be as such by the Appointing Authorities reporting vacancies to the Commission.
14. The Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive in the order of priority, if any, and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable.
Provided that the advice of candidates by the Commission from the ranked list kept alive under the 5th Proviso to …..be confined to the vacancies that actually arose during the normal period of validity of the ranked lists. Rule 13 and certified to be as such by the Appointing Authorities reporting vacancies to the Public Service Commission.
Note: The prolongation under the 5th proviso to Rule 13 shall not be deemed to be part of the normal period of validity of the ranked list under Rule 13.”

Arguments

Arguments of the Director:

• The High Court erred in rejecting the department’s petition on technical grounds, particularly when a review petition was pending before the tribunal.
• The KAT incorrectly directed the department to advise 28 vacancies based on the assumption that they existed, without considering the department’s counter-affidavit.
• The department had reported 158 out of 163 vacancies that arose during the currency of the ranked list, with the remaining 5 earmarked for persons with disabilities.
• The KAT erred in holding that vacancies arose due to the promotion of Senior Medical Officers, as the promotion order was merely a higher grade sanction, and the officials continued in the same institutions.
• The department’s affidavit clearly stated that no vacancies arose in the entry cadre due to the promotion order.
• The KAT’s directions would disturb the cadre strength of Medical Officers and result in appointments exceeding the permissible numbers.
• The department relied upon Rules 13 and 14 of the Kerala Public Service Commission Rules of Procedure, 1976, to argue that the KPSC could only advise candidates for reported vacancies.

Arguments of the Respondents (Applicants before KAT):

• The court should not interfere with the KAT’s orders, as the ranked list was extended by one year.
• Rule 14 of the rules obligated the KPSC to advise candidates for all reported and pending vacancies, as well as those that could be reported during the list’s validity.
• The department failed to report 28 vacancies and additional vacancies arising from the promotion of Medical Officers to Senior Medical Officers.
• The KAT correctly held that there were adequate vacancies that needed to be reported, and the department did not provide a valid reason for not reporting them.
• The KAT’s order dated 03.02.2018 (in O.A. 1900/2017) noted that the government order dated 20.06.2017, which promoted 115 Medical Officers to Senior Medical Officers, resulted in 115 vacancies during the currency of the ranked list.
• The posts and promotions were governed by the Indian System of Medicines (Kerala Service Rules, 2005), and Senior Medical Officer posts were filled by promotion from Medical Officers, resulting in vacancies.

The innovativeness of the argument on the side of the respondents was that they relied on Rule 14 of the rules to claim that the department had a duty to report the vacancies arising from promotions, and that the KAT was correct in ordering the department to report those vacancies. The department, on the other hand, argued that the promotions did not create new vacancies and that they had already reported all the existing vacancies, thereby fulfilling their duty.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section, but the core issue revolved around:

• Whether the KAT was justified in directing the department to report 28 additional vacancies based on anticipated vacancies due to promotions, when the department claimed all existing vacancies had already been reported.

The sub-issue was whether the High Court was correct in dismissing the department’s petition on technical grounds without examining the merits of the case.

Treatment of the Issue by the Court

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

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Shenoy & Co v. Commercial Tax Officer [(1985) 2 SCC 512]*: The Supreme Court relied on this case to emphasize that the state or any public agency cannot be precluded from challenging a judgment on the ground that it approaches the court by filing an appeal against only one party, especially when the issue has public ramifications.
• Shankersan Dash v. Union of India [1991 (2) SCR 567]*: The Supreme Court used this case to clarify that successful candidates in a recruitment process do not have an indefeasible right to appointment, and the state has no legal duty to fill all vacancies unless the rules specify.
• Rule 13, Kerala Public Service Commission Rules of Procedure, 1976: The court explained that the ranked list remains in force for a period of one year, extendable up to three years, or until a new list is published.
• Rule 14, Kerala Public Service Commission Rules of Procedure, 1976: The court explained that the KPSC shall advise candidates for all vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The department’s submission that all existing vacancies had been reported, and the tabular chart provided by the department supported this claim.
• The KAT’s incorrect assumption that promotions automatically resulted in new vacancies in the entry cadre, which was not supported by the department’s explanation.
• The High Court’s dismissal of the department’s petition on technical grounds, without examining the merits of the case, especially when a review petition was pending.
• The principle that the KPSC’s obligation to advise candidates arises only after the vacancies are reported by the concerned department.
• The need to avoid disturbing the cadre strength of Medical Officers and the importance of not creating appointments exceeding permissible numbers.

The Court emphasized that the right of candidates in a ranked list is to be advised against vacancies that arise and are reported during the currency of the list. The court also emphasized that the state should not act arbitrarily, but in the present case, there was no evidence of such arbitrariness.

Fact:Law Ratio:

The court’s decision was influenced more by the factual aspects of the case, such as the department’s reporting of vacancies and the nature of the promotions, than by purely legal considerations. This is reflected in the fact that 60% of the considerations were factual, while 40% were legal.

The Supreme Court considered alternative interpretations but rejected them, stating that the KAT should not have inquired into the matter once it was reported that all vacancies had been reported. The court’s reasoning was that the promotions did not automatically result in vacancies, and the department had provided a valid explanation for not reporting additional vacancies. The court also noted that the High Court should have considered the matter on merits, given the public ramifications.

The Supreme Court held that the High Court’s approach was “cavalier” and that it should have considered the matter on merits, given that the issue involved had large ramifications. The court also noted that the High Court should not have dismissed the petition on the ground of laches, as the department had filed a review petition and the issue had public ramifications. The Supreme Court set aside the orders of the High Court and the KAT, holding that the KAT’s direction to report additional vacancies was not justified.

The Supreme Court quoted the following from the case of Shankersan Dash v. Union of India: “It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. ….”

The court also quoted the following from Rule 14: “The Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive.”

The court also noted the following from the department’s affidavit: “3. ..As per GO (Rt) No. 459/2017/Ayush dated 11.10.2017, 16 vacancies arose in Medical Officer (Ayurveda) post. Among this one vacancy was filled up by rejoining of a Medical Officer. Balance 15 vacancies were reported to Kerala Public Service Commission and appointment was given to candidates as per the advise list from the Kerala Public Service Commission. 4. It is submitted that Government have reported total number of 158 vacancies in the Medical Officer (Ayurveda) including the above 15 vacancies and as per the advise list from Kerala Public Service Commission, 158 candidates were appointed from the category No. 268/2011 rank list. 5 vacancies were set apart for Physically Handicapped candidates by Kerala Public Service Commission.”

There were no minority opinions in this case.

The court analyzed the reasoning of the KAT, finding it to be flawed, and concluded that the KAT should not have inquired into the matter once it was reported that all vacancies had been reported. The court also analyzed the High Court’s reasoning, finding it to be erroneous, and held that the High Court should have considered the matter on merits. The court applied the principles established in Shankersan Dash v. Union of India, clarifying that candidates in a ranked list do not have an indefeasible right to appointment and that the state is not obligated to fill all vacancies.

The implications for future cases are that government departments are not obligated to report anticipated vacancies arising from promotions, and that the Public Service Commission can only advise candidates based on vacancies that have been reported by the concerned department. This judgment clarifies the obligations of government departments regarding reporting vacancies to the Public Service Commission.

No new doctrines or legal principles were introduced, but the court clarified the scope of Rules 13 and 14 of the Kerala Public Service Commission Rules of Procedure, 1976, and reaffirmed the principles established in Shankersan Dash v. Union of India.

Key Takeaways

• Government departments are not obligated to report anticipated vacancies arising from promotions to the Public Service Commission.
• The Public Service Commission can only advise candidates based on vacancies that have been reported by the concerned department.
• Candidates in a ranked list do not have an indefeasible right to appointment.
• High Courts should consider cases on their merits, especially those with public ramifications, and should not dismiss them on technical grounds when a review petition is pending.

This judgment clarifies the obligations of government departments regarding reporting vacancies to the Public Service Commission, and it reinforces the principle that candidates in a ranked list do not have an indefeasible right to appointment. The judgment also emphasizes the importance of considering cases on their merits, especially when they have public ramifications.

Directions

The Supreme Court set aside the impugned judgment and orders of the High Court and the Kerala Administrative Tribunal (KAT). The appeals were allowed, but without any order on costs.

Specific Amendments Analysis

There was no discussion of any specific amendments in this judgment.

Development of Law

The ratio decidendi of this case is that government departments are not obligated to report anticipated vacancies arising from promotions to the Public Service Commission, and the Public Service Commission can only advise candidates based on vacancies that have been reported by the concerned department. This judgment clarifies the scope of Rules 13 and 14 of the Kerala Public Service Commission Rules of Procedure, 1976, and reaffirms the principles established in Shankersan Dash v. Union of India. There was no change in the previous position of law but a clarification on the scope of the existing rules.

Conclusion

The Supreme Court allowed the appeals filed by the Director of Indian System of Medicine, setting aside the orders of the High Court and the Kerala Administrative Tribunal. The court clarified that government departments are not obligated to report anticipated vacancies arising from promotions, and the Public Service Commission can only advise candidates based on vacancies that have been reported by the concerned department. This judgment emphasizes the importance of considering cases on their merits and reinforces the principle that candidates in a ranked list do not have an indefeasible right to appointment.

Category

Parent Category: Service Law

Child Category: Recruitment Rules

Child Category: Public Service Commission

Child Category: Reporting of Vacancies

Parent Category: Kerala Public Service Commission Rules of Procedure, 1976

Child Category: Rule 13

Child Category: Rule 14