It is improper exercise of power to make appointments over and above those advertised.
|Case name:||R. Jayarama & Ors. V/s State of Kerala & Ors.|
|Case number:||S.L.P. (C) Nos. 1500-1504 of 2008|
|Court:||THE SUPREME COURT OF INDIA|
|Bench:||P. SATHASIVAM J. DR. B.S. CHAUHAN J.|
|Decided on:||NOVEMBER 29, 2010.|
|Relevant Act/Sections:||Kerala State and Subordinate Services Rules, 1958|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- By Government Order dated 18.11.1974, the Government of Kerala prescribed that 50% of the posts of Sub Inspectors in the District Armed Reserve will be filled up by direct recruitment as in the case of Sub Inspectors of the Local Police. The appellants are the Sub Inspectors of Police in the District Armed Reserve. A notification for appointment to the post of Sub Inspectors of Police by direct recruitment in the District Armed Reserve was issued by the Public Service Commission (hereinafter referred to as “PSC”) in the Gazette dated 24.09.1985.
- Pursuant to the said notification, the appellants herein applied for the said post. After the written test, physical test and interview, a rank list was prepared for direct recruitment to the post of Sub Inspector of Police in the District Armed Reserve on 05.06.1990. The appellants were also included in the rank list. At the time, when the said rank list came into force, except special recruits, no one was appointed by direct recruitment for the post of Sub Inspector in the District Armed Reserve as prescribed in the notification dated 24.09.1985 issued by the PSC.
- On 05.06.1990, there were 207 posts of Sub Inspectors in the District Armed Reserve. Out of the said posts, 11 posts were occupied by persons appointed under Rule 17A of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as “KS & SSR”) from among the Scheduled Castes and Scheduled Tribes. The remaining 196 posts were occupied by the promotees from the feeder category. The promotees occupied the posts in excess of the ratio purely on a provisional basis. On 09.08.1990, after the rank list came into force, only 40 persons from that list were advised for appointment since only 40 vacancies were reported to the PSC at that time.
- Since the rank holders were not advised by the PSC, the candidates including the appellants filed O.P. No. 2062 of 1991 and similar other petitions before the High Court for directing the authority to report the vacancies and also to direct the PSC to advice for the vacancies available in the direct recruitment quota.
- On the basis of the interim order by High Court, instead of reporting 58 vacancies only 20 vacancies were reported to the PSC and they were advised on 26.02.1992. Thereafter, the High Court issued an order on 27.11.1992 in the same petition to advise 28 persons including the appellants from rank list to 28 vacancies reported to the PSC. In that petition, it was made clear that the advise given on the basis of the order, will be provisional and the candidates advised would be entitled to get regular appointment only if it was ultimately found that the vacancies for which advise was made arose during the currency of the rank list.
- Under the first proviso to Rule 13 of the PSC Rules of Procedure, the validity of the rank list was till 15.04.1993. Since under the said proviso, in cases, where candidates were included in the rank list was for admission to Training Course that leads to automatic appointment, the validity of the rank list shall be one year from the date of finalization of the rank list 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 finalization of the rank list, whichever is later. The appellants were advised for vacancies available for direct recruits even at the time when the rank list came into force on 05.06.1990. Since the case of 28 persons including the appellants who were advised on 04.01.1993 were not dealt with in a just and equitable manner, the Government having realized that 28 vacancies for which direct recruitment should have been made existed during the currency of rank list, issued Government Order dated 17.06.1999 invoking the power under Rule 39 of the KS & SSR for continuing 28 persons in service based on the advise given by the PSC.
- Some of the promotees filed O.P. No. 31240 of 2001 before the High Court on 15.10.2001 challenging the seniority list and sought for a direction to exclude 29 persons including the appellants who got retention through the order dated 17.06.1999 from the seniority list and promote them from reserve Sub Inspectors to reserve Inspectors.
- The 3rd respondent, who is to be placed below the appellants and who was, in fact, promoted as Sub Inspector long after the advise of the appellants as Sub Inspectors is placed above them violating the 50:50 ratio for direct recruitment and promotion. Similarly, a number of promotees were also placed above the appellants violating the service rules.
- Therefore, the appellants filed O.P. No. 5818 of 2002 seeking a writ of mandamus directing respondent Nos. 1 & 2, namely, the State of Kerala and Director General of Police, Police Headquarters, to give seniority to direct recruits. By a common order dated 29.08.2006, the High Court disposed of Writ holding that the order dated 17.06.1999 retaining the persons including the appellants in service cannot operate retrospectively to adversely affect the seniority of persons, who were already promoted before the date of its issue.
- The High Court further held that it can at best take effect only from the date of its issue to save their appointments and, consequently, such persons except the 7 persons advised earlier can take seniority only from the date of the order i.e. 17.06.1999. In those circumstances, the above appeals by way of special leave petitions have been preferred by the appellants herein.
- ISSUE BEFORE THE COURT:
Whether the High Court committed an error in holding that the seniority of the appellants will take effect from the date of the Government Order i.e. 17.06.1999 and in not calculating the seniority of the appellants from the date of their advise by the PSC?
Whether the High Court was justified in upsetting the seniority of the appellants by partly allowing O.P. No. 31240 of 2001 without considering the facts and circumstances of the case in a perspective manner?
- RATIO OF THE COURT
- The court observed that in the common judgment dated 29.08.2006, the High Court found that only 7 candidates against the candidates advised and appointed as per the interim orders dated 29.06.1992 and 27.11.1992 (candidates advised on 04.01.1993 and 03.03.1993) are to be placed in the 50% quota for direct recruits and the remaining persons are eligible for seniority with effect from 17.06.1999, i.e., the date of the Government order. Selection by the PSC is merely recommendatory and does not imply automatic appointment and that the appointing authorities should not give notional seniority without valid reason, from a retrospective date, which would affect the seniority of those who have already entered into service.
- Relying on tha case of Surinder Singh & Ors. vs. State of Punjab & Anr., (1997) 8 SCC 488, this Court, in categorical terms, held that it is improper exercise of power to make appointments over and above those advertised. The Court further held that it is only in rare and exceptional circumstances and in emergent situations that this rule can be deviated from. It was further held that before any advertisement is issued, it would be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It was clarified that it is not as a matter of course that the authority can fill up more posts than advertised even if the vacancies had not been worked out properly.
- The court was of the view that is not in dispute that the advise was made on 04.01.1993 by the Government to the PSC on the basis of interim order passed by the High Court. Based on the said interim direction, the claim of the appellants was duly considered. Further, it is not in dispute that ultimately their writ petitions came to be dismissed on 20.07.1995. In such circumstances, as rightly pointed out by Mr. C.S. Rajan, learned senior counsel for the promotees that after dismissal of the main petition, interim order also gets vacated and the appellants cannot claim any benefit based on the interim order dated 04.01.1993.
- Considering Mr. Jaideep Gupta, learned senior counsel for the State of Kerala, it was clarified in the court that 40 vacancies had already been reported to the PSC and the candidates advised against those vacancies started training on 15.02.1991. Based on the interim order, 7 vacancies alone could have been reported and those candidates alone would have been advised and appointed going by the quota rule worked out as on the date of direct recruitment. the direct recruits did not have any right whatever to the seniority in respect of 40 posts.
- On the basis of this simple arithmetic work out the ratio and number of vacancies reckoned on the basis of official communication of the Home Department, the Division Bench found that only 40 persons from the rank list prepared by the PSC could be accommodated in the available quota. 7 posts lay outside their allotment entitlements. The seniority had to be reckoned on the basis of such actual availability of post. In fact, to avert the discharge of the appellants, the Government brought an order safeguarding their interest and the same was upheld by the Division Bench by retaining the services of the appellant w.e.f. 17.06.1999.
- At last it was viewed of the above factual position and in terms of the rules, as rightly observed by the High Court, the first 7 candidates advised after the interim order dated 30.05.1991 alone were thus legally eligible for the vacancies against the 50% quota of direct recruitment. Others, in excess of that 7, are not so eligible as per law. As observed by the High Court, inasmuch as the exemption and relaxation was ordered by the Government without giving any opportunity to anyone, particularly, the promotees, at best, the Government order operates prospectively and if it is to be applied retrospectively it would adversely affect the seniority of persons who were already promoted before the date of issue.
- DECISION HELD BY COURT:
The Supreme court was satisfied that the High Court has considered all aspects in accordance with the Rules applicable and we are in entire agreement with the said conclusion, consequently the claim of the appellants is to be rejected. Accordingly, all the appeals failed and were dismissed with no order as to costs.