Rajamohan v. The State Of Kerala — 1996 DIGILAW 345 (KER)

JUDGMENT 1. The petitioners in these Original Petitions aspire for appointment to the post of Director of Extensions, a post envisaged by S.36 (1) of the Kerala Agricultural University Act, 1971. The post was notified for selection as per Ext. P2 in the first Original Petition. Item No. 5 therein relates to the post of Director of Extensions. Number of post notified is only one. A select list was prepaid containing 3 names and the person holding No. 1 was appointed to the vacancy notified on 12th December 1995. The petitioner submit that the preparation of the select list was bad and each of them contend that they were also to be included in the list based on their qualification, experience, talent and performance in the interview. It was also contended by the petitioner in OP 20020/95 that the principles of communal rotation was not followed in the matter of preparation of select list or in making appointment. 2. The person appointed is to retire tomorrow from service on superannuation. Therefore, these questions need not be now agitated because a vacancy is to occur and that has to be filled up. 3. Now the debate is focused on how the vacancy shall be filled up, whether the list should be followed for that vacancy in order to appoint the rank No. 2 or 3 as the case may be in the list or the vacancy should be re-notified. 4. When the vacancy was notified, the procedure for appointment to the post was as per the notification dated 21st March 1995. This provides that the Vice Chancellor shall advertise the post and shall constitute a selection committee. He shall scrutinise the applications and prepare a list of eligible candidates to be called for interview. The selection committee shall prepare a list of persons in the order of merit to be considered for appointment. It shall be submitted to the executive committee for approval and appointment shall be only after such approval. It is stated in clause (e) of para.3(2) that the list shall be valid for one year. The list was published on 12th December 1995. The counsel for the Agricultural University and the 6th respondent in OP No. 20020/95 submits that period of the list has not expired and therefore that the vacancy that occurs tomorrow shall be filled up from out of the list by the University. The list was published on 12th December 1995. The counsel for the Agricultural University and the 6th respondent in OP No. 20020/95 submits that period of the list has not expired and therefore that the vacancy that occurs tomorrow shall be filled up from out of the list by the University. The petitioners contend that as only one vacancy in the post of Director of Extensions was notified, further vacancies arising in the same post shall not be filled up from out of that list. In support of this contention they rely on the decision in Hoshiar Singh v. State of Haryana AIR 1993 SC 2606. It was held in para 10 thereof as follows: "The learned counsel for these appellants have not been able to show that after the revised requisition dated January 24, 1991 whereby the Board was requested to send its recommendation for 8 posts, any further requisition was sent by the Director General of Police for a larger number of posts. Since the requisition was for eight posts of Inspector of Police, the Board was required to send its recommendations for eight posts only. The Board, on its own, could not recommend names of 19 persons for appointment even though requisition was for eight posts only because the selection and recommendation of larger number of persons than the posts for which requisition is sent. The appointment on the additional post on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of application mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. The High Court was, therefore, right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only was not legally sustainable." The counsel for the petitioners referred to another decision of the Supreme Court in State of Bihar v. Madan Mohan Singh AIR 1994 S.C. 765 . The High Court was, therefore, right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only was not legally sustainable." The counsel for the petitioners referred to another decision of the Supreme Court in State of Bihar v. Madan Mohan Singh AIR 1994 S.C. 765 . It was held in para 7 thereof as follows: "Having carefully considered the advertisement and the various averments in the affidavits and the counter affidavits we are of the view that the crucial question is whether in fact the advertisement and the initial decision of the High Court were meant to fill up only 32 vacancies and whether accordingly the High Court called for only 129 candidates from the list, who appeared for the written test in the ratio of 1:4 and whether consequently the whole selection process was confined to fill up only those 32 vacancies? If the answer is in the affirmative then the question of the same list subsisting for one more year for filling up the subsequent vacancies did not arise in spite of the resolution of the High Court, dated 24th November 1990. As noted above in the reply affidavit, the Registrar of the High Court categorically stated that 32 vacancies were available and to fill up the same, 129 candidates were called for interview namely four times of the number of vacancies and that the rest of the vacancies arose later on. To satisfy ourselves, we have also called for the relevant records from the High Court and the same is placed before us in a sealed cover. A perusal of the records shows that in the Full Court meeting on 5th May 1990 it was resolved that on the basis of the result of the preliminary screening test, four time of number of candidates to be selected for appointment be called for interview. From the proceedings of another Full Court meeting held on 15th September 1990 it is clear that it was resolved that 128 candidates alone in order of merit should be called for interview. The proceedings of the Full Court meeting dated 24th November 1990 would show that the Full Court finalised the selection for filling up 32 vacancies only and send a list of 32 candidates in order of merit. The proceedings of the Full Court meeting dated 24th November 1990 would show that the Full Court finalised the selection for filling up 32 vacancies only and send a list of 32 candidates in order of merit. However, a further resolution was passed that if any further vacancy in the quota of the direct recruits was required to be filled up within a period of one year the same be filled up by recommending the candidates in order of merit from amongst the remaining candidates in the merit list. It is therefore, crystal clear that the advertisement and the whole selection process that ensued were mean only to fill up 32 vacancies. Learned counsel for the respondents relying on the decisions of this Court in Kailash Chandra Sharma v. State of Haryana, 1989 Suppl (2) SCC 696: ( AIR 1990 S.C. 454 ) and O.P. Garg v. State of U.P., A.I.R.. 1991 SC 1202, contended that when there are temporary vacancies, the direct recruits should have their share of quota in respect of temporary vacancies also. As noted above, the temporary vacancies arose subsequently but even otherwise in the view we are taking namely that the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list prepared on the basis of the written test as well as the viva voce will hold good only for the purpose of filling up those 32 vacancies and no further because the said process of selection for those 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have became eligible subsequent to the said advertisement and selection process." 5. The Supreme Court in Ashok Kumar v. Chairman, B.S. Recruitment Board AIR 1996 SC 976 held as follows: "Article 14 read with Art.16(1) of the Constitution enshrine fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Art.14 read with Art.16(1) of the constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional." As mentioned above, only one vacancy was notified because at a time more than one vacancy will not arise, because there is only one post. No other vacancy could be expected when the University was attempting to fill the then existing vacancy. No further vacancy than the one notified was anticipated or envisaged or expected. Therefore, the notification was intended only for one vacancy which was existing in the post of Director of Extensions. It is true that the notification providing for procedure, for appointment mentioned that the list shall be valid for one year. Pointing out this provision contained in the statutory notification, the counsel for the University as well as the 6th respondent submits that unless there is challenge against that provision, the list shall be operated for its entire one year period and when rank No. 1 was appointed a vacancy was expected after 8 months, on his retirement. Therefore another person included in the rank list shall be appointed. Therefore, the petitioner's contention cannot be accepted. 6. I am of the view that the period of one year mentioned in clause (e)] in para 1.11(2) of the said notification is meant for another purpose as rightly pointed out by the counsel for the petitioners. The University may take up preparation of a select list in advance to the occurrence of vacancies. Vacancies may occur after the notification and the preparation of the list. There may be difficulties or other hindrance in filling up the post including that on administrative reasons and even the person offered appointment may not present himself accepting the appointment. It is in such circumstances that, to avert a selection process being futile, that the period of one year is prescribed. There may be difficulties or other hindrance in filling up the post including that on administrative reasons and even the person offered appointment may not present himself accepting the appointment. It is in such circumstances that, to avert a selection process being futile, that the period of one year is prescribed. When one vacancy is notified and a period of one year is prescribed it does not mean that the list can be utilised for filling up of a second vacancy. That will offend Art.14 and 16(1) of the Constitution of India as held by the Supreme Court in the aforesaid decisions. Moreover when one post is notified only few candidates will offer for selection. If more vacancies had been notified, necessarily there may be further more candidates. Apart from that if a vacancy is notified, persons who became eligible after the last date fixed for application, perhaps with more expertise and talent may not be able to complete in the selection. The attempt of the University is to identify the most eligible, qualified and competent candidate. That shall be in consensus with the rights under Art.16, affording an opportunity to all the qualified hands. That means all qualified hands in the proximity of time to the moment of occurrence of vacancy shall have such opportunities. Here the list contained persons who were qualified long before the vacancy that to occur tomorrow and there are several candidates who have become eligible for the post subsequent to that. If the vacancy is to be filled up from the list prepared pursuant to the earlier notification, that amounts to denial of opportunity to several candidates qualified after the notification and those who did not offer themselves earlier as only one vacancy had been notified. In such circumstances to operate the existing list will be violative of Art.14 and 1,6 of the Constitution of India. 7. In the decision reported in Prem Singh and others v. Haryana State Electricity Board and others JT 1996 (5) SC 219 the Supreme Court again made it unambiguously clear that a list prepared pursuant to a notification specifying certain number of vacancies, can be followed to fill up clear and anticipated vacancies and not future vacancies. In this case when the notification was issued, the vacancy that to occur tomorrow could not have been anticipated at all. In this case when the notification was issued, the vacancy that to occur tomorrow could not have been anticipated at all. It could not be for seen who had to be selected at that time. So the vacancy that to occur tomorrow is undoubtedly a future vacancy as regards the notification already issued. In Kerala Agricultural University v. Gopinathan Unnithan 1996 (2) KLT 344, a Division Bench of this court held as follows: When one vacancy alone was notified, candidates ranked in the select -list cannot be appointed to the vacancies that arose subsequently. Recruitment of candidates in excess of the notified vacancy is a denial and deprivation of the constitutional rights of other qualified hands under Art.14 read with Art.16(1) of the Constitution of India. Therefore, a person, included in the select list cannot be appointed to the subsequent vacancies which were not covered by the notification. Any appointment, to the vacancies that had arisen subsequently and which were not notified for recruitment is unconstitutional. Reference may be made to the decision in Ashok Kumar and others v. The Chairman, Banking Service Recruitment Board and others JT 1995 (8) SC 276. In the instant case, as agreed to by all parties concerned in this case, the vacancy that was notified on 9th November 1983 was only one post of Professor of Agricultural Statistics. It was for filling up that vacancy only a select list was prepared. From that select list, a candidate can be appointed only for filling up the single vacancy notified. Appointment of candidates in the waiting list to the vacancies subsequently arose is unconstitutional." This pronouncement was in a case dealing with recruitment to the services of 3rd respondent itself and is binding on it. 8. Accordingly, the petitioners are perfectly justified in contending that, even though their challenge against the selection process has become infructuous due to the efflux of time and the retirement of the existing incumbent, the vacancy occurring in his retirement shall be notified afresh and subjected to a fresh selection. The University is not justified, taking into account the perspective of Art.14 and 16(1) of the Constitution of India, to fill up the new vacancy, by appointing a candidate in the existing list. The University being a statutory creation, an authority coming within Art.12 of the Constitution of India, is bound by the mandates under Part.3 of Constitution. The University is not justified, taking into account the perspective of Art.14 and 16(1) of the Constitution of India, to fill up the new vacancy, by appointing a candidate in the existing list. The University being a statutory creation, an authority coming within Art.12 of the Constitution of India, is bound by the mandates under Part.3 of Constitution. Therefore, the University shall make a fresh selection to fill up the vacancy, that is occurring tomorrow. The contentions raised by the petitioners, assailing the select list for the post of Director of Extensions and other post are not gone into because the select list cannot be now operated, as the vacancy notified had been filled up. 9. The petitioner in OP No. 20020/95 submits that he was selected earlier and is holding the post of Associate Director of Extension and therefore he shall be eligible for appointment as Director of Extension in charge. Associate Director is not a statutory post envisaged by S.36 of the Act. As per S.36 of the Agricultural University Act, 1961, Director of Extensions is a statutory post. That being a statutory post, how the alternate arrangement shall be made against the vacancy occurring on tomorrow shall be within the total discretion of the University. Therefore, the Vice-Chancellor or Executive Committee as the case may be can make temporary alternate arrangement at their discretion. At any rate the University shall conduct a selection within 4 months to fill up the post of Director of Extension. Original Petition is disposed of as above.