JUDGMENT : The question to be considered in this case is whether there can be any appointment in excess of the vacancies notified. 2. The Travancore Devaswom Board-1st respondent issued Ext.P1 notification dated 6.6.2013, published in various newspapers including Hindu daily inviting applications for appointment to various teaching posts. Petitioner submitted application for appointment as Assistant Professor in Botany. The number of vacancies notified in Ext.P1 in respect of the subject Botany was one. Ext.P1 notification also provided that the number of vacancies shown is likely to change. 3. On the basis of Ext.P2 call letter, the petitioner appeared for the interview. Thereafter the 1st respondent published rank list - Ext.P3 on 13.5.2015. Petitioner was ranked No.2 in the rank list. The 1st rank holder was appointed immediately after publication of Ext.P3 rank list. Petitioner submits that the 1st rank holder was appointed against the vacancy which arose on 1.04.2014 consequent to retirement of one Smt. Lekha Nair from the Devaswom Board Pumba College, Parumala. It is stated that one Sri. Anilkumar who was also working in the very same College retired on 31.5.2015; on 2.3.2016 one Smt. Lakshmi Sreekumar who was working in the Botany Department was transfered to Devaswom Board College, Sasthamcotta. According to the petitioner as on 1.6.2015, there were only three Assistant Professors in Botany in the Devaswom Board College Parumala. Petitioner also relies on Ext.P5 letter of the Deputy Director of Collegiate Education addressed to the Director of Collegiate Education on 5.2.2016 in which it was stated that the workload for Botany Department was 83 hours in total, out of which there is no approval for 20 hours for the vocational course. However, for the 63 hours of workload 4 posts are admissible. Petitioner further submits that the appointment to the 4th vacancy available in the 4th respondent College is illegal. 4. The selection of teaching staff in the private Colleges under the MG University is governed by the Mahatma Gandhi University Statute, 1997. Statute 12 deals with preparation of select list. 5. Under clause 5 of Statute 12, a select list prepared by selection committee shall remain in force for a period of one year. At the same time clause 4 provides that the select list shall not normally contain more than three times the number of vacancies likely to arise within one academic year. 5. Under clause 5 of Statute 12, a select list prepared by selection committee shall remain in force for a period of one year. At the same time clause 4 provides that the select list shall not normally contain more than three times the number of vacancies likely to arise within one academic year. While clause 4 refers to one academic year clause 5 refers to one year. 6. In this case the 1st vacancy against which rank no.1 was appointed arose much before the publication of the rank list. As far as the 2nd vacancy is concerned, it arose on retirement of Sri. Anilkumar on 31.5.2005. The petitioner submits that initially the respondent Board took the view that there was no vacancy available as per the workload statement. Even though petitioner approached the 1st respondent several times, no action was taken and therefore she approached this court and filed this writ petition, for a direction to appoint her as Assistant Professor in the 4th respondent College at Parumala and for consequential directions. 7. On 8.6.2016 an interim order was passed in this case directing that the petitioner shall be considered provisionally for appointment as Assistant Professor in Botany in case there are vacancies and in case the petitioner is eligible for appointment within a period of two weeks. The 1st respondent Board and the 4th respondent College took up the matter in W.A.No.1252 of 2016. The Division Bench without expressing any opinion on merits disposed of the Writ Appeal vacating the interim order, seeing that in effect the final relief itself was granted. 8. The petitioner has produced the details regarding the sanctioning of pensionary benefits to Sri. Anilkumar M.K. from the 4th respondent College on 31.5.2015 as per Ext.P6 letter dated 5.10.2015 from the Accountant General in order to show that a vacancy arose in the 4th respondent College on account of his retirement. Ext.P8 order of transfer granted to Smt. Lakshmi Sreekumar on 29.2.2016 is also produced in order to show that the transfer was against an existing vacancy. Apart from that the petitioner got information under Right to Information Act from the Information Officer of the 4th respondent College to the effect that there was one vacancy available in the 4th respondent College as on 1.4.2016. 9. Apart from that the petitioner got information under Right to Information Act from the Information Officer of the 4th respondent College to the effect that there was one vacancy available in the 4th respondent College as on 1.4.2016. 9. The petitioner has also produced Ext.P11 rank list published by the 1st respondent for the appointment of Lecturers in Botany in various Devaswom Board Colleges under the University including the name of Smt. Lakshmi Sreekumar as rank no.3. That rank list was published on 9.12.2010 and the rank list was for the appointment of Lecturers in Botany in the Colleges of the 1st respondent Board affiliated to the Mahatma Gandhi University. According to the petitioner, four appointments were made from the rank list. Out of which 2 were appointed in Devaswom Board College Thalayolaparamb and 2 were appointed in the 4th respondent College. Therefore the petitioner claims that there arose 2 vacancies; one on account of the retirement of one Sri. Anilkumar and 2nd on transfer of Smt. Lakshmi Sreekumar. 10. Respondents 1 and 4 have filed counter affidavit stating that the select list exhausted on appointment of the 1st rank holder. According to the respondents, the applications were invited for selection and appointment of Assistant Professors in the Colleges of 1st respondent as per Ext.P1. Only one vacancy was notified for the Department of Botany in the Colleges under the Mahatma Gandhi University. Therefore as and when the 1st rank holder was appointed, the rank list exhausted. It is further stated that Government had also appointed its nominee to the staff selection committee only for one vacancy which alone was notified as per Ext.R1(a) letter dt.24.1.2014. In Ext.R1(a) letter it is specifically stated that Sri. K.N. Satheesh, IAS, who was the Director of Higher Secondary Education Department was appointed as the Government nominee to the staff selection committee for filling up vacant post of teaching staff of Colleges under the Travancore Devaswom Board as detailed therein. The number of vacancy for which he was appointed as a nominee for the subject Botany in the 4th respondent College was only one. It was specifically made clear that Government nominee should ensure that selection is made only to the vacancies mentioned there and to report to the Government regarding the observance of the guidelines immediately within one week from the date of meeting. It was specifically made clear that Government nominee should ensure that selection is made only to the vacancies mentioned there and to report to the Government regarding the observance of the guidelines immediately within one week from the date of meeting. Apart from that the Deputy Director of Collegiate Education as well as the University concerned were directed to ensure that selection, appointment and approval will be made to the vacancies only after assessing the workload and vacancies strictly following the conditions stipulated in G.O.(MS) No.75/2009/HEdn dated 1.7.2009 and Government letter No.170/D2/12/HEd dated 18.1.2012. The 1st respondent Board further stated that a vacancy arose on inter university transfer in the Botany Department subsequently. But that vacancy cannot be claimed by the petitioner, since the vacancy notified was only one. The respondents relied on the judgments in Kerala Agricultural University v. Gopinathan Unnithan : 1996 (1) KLT 344 and State of Orissa and another v. Rajkishore Nanda and others : 2010 (6) SCC 777 in support of their contention that there cannot be any appointment in excess of the notified vacancy. 11. Petitioner field reply affidavit stating that the notification itself contained a provision that the number of vacancies were likely to vary. More over as per the provisions contained in Mahatma Gandhi University Statutes the validity of rank list is for a period of one year. Therefore the vacancies which arose during the currency of rank list are liable to be filled up from the same rank list. It is further stated that the judgments relied on by the respondent Board was not one interpreting the Mahatma Gandhi University Statute. 12. Heard the learned counsel for the petitioner and the learned Standing Counsel. 13. Dr. George Abraham, the learned counsel for the petitioner relied on the judgment of a learned single judge in Sunil Kumar v. Cochin Devaswom Board : 2016 (4) KLT 1078 asserting that rank list continues to be in force till a fresh select list is drawn and at any rate for a period of one year from its publication and therefore the 2nd vacancy which arose during the validity period of the rank list is liable to be filled up appointing the petitioner. At the same time Sri. At the same time Sri. T.K. Ajithkumar, the learned Standing Counsel relied on the judgments in Kerala Agricultural University v. Gopinathan Unnithan : 1996 (1) KLT 344 , State of Orissa and another v. Rajkishore Nanda and others : 2010 (6) SCC 777 , Suresh R.(Dr.) v. Mahatma Gandhi University and others : 2009 (2) KHC 58 and Chijitha v. Palakkad Primary Co-operative Agricultural and Rural Development Bank Ltd. and others : 2013 KHC 3354. 14. In the judgment in Suresh R.(Dr.) v. Mahatma Gandhi University and others : 2009 (2) KHC 58 a Division Bench of this court considered the issue regarding the filling up of vacancies in the University in excess of notified vacancies referring to the provisions contained in Mahatma Gandhi University Statutes, 1997 and referring to the provisions therein and the notification, it was held therein that no vacancy other than those notified could be filled up. That was a case relating to the appointment to a teaching post in the University. There appointment was given to the 1st rank holder in the open merit vacancy and the 2nd vacancy was filled up by a candidate on communal reservation. On 6.1.2007, there arose another vacancy. The writ petition was filed on coming to know that there was a proposal to appoint rank No.2 against that vacancy, challenging the proceedings to fill up vacancies in excess of the notified vacancies. It was claimed that further appointments can be made only after issuing a proper advertisement in view of clause 3 of Chapter III of Mahatma Gandhi University Statute 1997. The University took the view that the rank list was having one year validity and Syndicate had decided to fill up vacancies which arose in the meantime from the rank list. In paragraph 12 of the judgment, the Division Bench held that the University could have filled only the vacancies notified by it. It was also held that if in relation to a particular selection, it is proposed to have the rank list alive for a particular period and it is proposed to fill up the vacancies that may arise during the currency of the rank list, by appointing candidates from it, there should be a decision to that effect by the competent body of the University and it should be published along with the notification itself. The notification which came up for consideration before the Division Bench did not contain any such provision. In that case the Division Bench found that the respondents should not have filled up any vacancy in excess of the two vacancies notified. 15. In the Apex Court judgment in State of Orissa and another v. Rajkishore Nanda and others : 2010 (6) SCC 777 , it was held that vacancies have to be filled up as per the statutory rules and in conformity with constitutional mandate. In that case, it was held that even a decision to leave certain vacancies unfilled, even after preparing the select list cannot be assailed if a bonafide decision was taken by the appointing authority not to fill up the vacancy. In that case the number of vacancies notified was 15. In the notification it was made clear that number of vacancies could be increased. The number of vacancies were increased from 15 to 33 before the selection process was completed. After referring to the rules of recruitment, the Apex Court found that the number of vacancies including the expected vacancies were to be notified to the local Employment Exchange and to be advertised by other means. The select list was to contain candidates double the number of vacancies advertised. It was held that filling up of vacancies over and above the number of notified vacancies is neither permissible nor desirable as it amounts to filling of future vacancies. Relying on the judgments of the apex court in State of Bihar and others v. The Secretariat Assistant S.E. Union and others : AIR 1994 SC 736 , Prem Singh and others v. Haryana State Electricity Board and others : (1996) 4 SCC 319 , Banking Service Recruitment Board and others : AIR 1996 SC 976 , Surinder Singh and others v. State of Punjab and others : AIR 1998 SC 18 and Rakhi Ray and others v. High Court of Delhi : AIR 2010 SC 32, it was held that there could not be any further appointment. Relying on the judgment in Mukul Saikia and others v. State of Assam and others : AIR 2009 SC 747 it was also held that the currency of select list expired as soon as the number of posts advertised were filled up. Relying on the judgment in Mukul Saikia and others v. State of Assam and others : AIR 2009 SC 747 it was also held that the currency of select list expired as soon as the number of posts advertised were filled up. In that case it was found that the rank list was prepared taking into account 33 vacancies including 66 candidates which is double the number of vacancies. In Chijitha Vs. Palakkd Primary Co-operative Agricultural and Rural Development Bank Ltd. and others : 2013 KHC 3354 this court was considering the claim raised by rank No.2 in the general category whose appointment to the post of Peon/Watchman in a Co-operative Bank was cancelled. Notification was for appointment against one vacancy in general category and the other from physically handicapped. The Society had issued appointment order to two candidates from the general category and one from physically handicapped. After appointment her services were terminated saying that the appointment was made without proper notification. After considering the case law on the point, this court upheld termination of services seeing that the appointment was made in excess of the notified vacancy. 16. However, the learned counsel for the petitioner relied on the judgment in Sunil Kumar Vs. Cochin Devaswom Board : 2016 (4) KLT 1078 rendered by a learned single Judge of this court. The selection involved in that case was in respect of appointment to the post of Assistant Professor in Kerala Varma College Thrissur under Cochin Devaswom Board. The issues considered, as given in paragraph 9 of the judgment is that whether the rank list was to remain valid for a single academic year or till the drawing up of a fresh rank list and could the vacancy that arose in the afternoon of 31.5.2015 be filled up by a candidate ranked in the rank list prepared pursuant to Ext.P1 notification. In that case it was already found that the select list papered by the selection committee would be in force till a fresh select list is drawn up going by the provisions contained in Statute 10(4) and (5) of the Calicut University First Statute, 1979 and that as on 1.6.2015 that rank list was valid. However it is not seen that whether the question regarding number of notified vacancies was considered in that case. 17. However it is not seen that whether the question regarding number of notified vacancies was considered in that case. 17. In this case while notifying the number of vacancies, it was stated in the notification that number of vacancies are likely to be varied. As per the provisions contained in Statute 12 the life of the ranked list is one year. The Statutes further provides that select list shall not contain candidates more than thrice the number of notified vacancies. There is no stipulation regarding the minimum number of candidates. In the judgment in Dr. Suresh's case supra ( 2009 (2) KLT 950 ), the Division Bench held as follows: "It is more or less fairly settled that if the rules, governing selection, provide a life for the rank list and also permit appointments from that list to vacancies reported till the expiry of the list, there is nothing wrong with filling up more vacancies than the notified vacancies. So, for resolving the controversy in this case, the 1st point to be ascertained is whether there is any such provision in the Statutes of the M.G. University, governing selection and appointment of teachers. No statutory provision has been brought to our notice on this point. Of course, it is a settled principle in law that a statutory authority, which is authorised to frame subordinate legislation, may issue executive orders on subjects, concerning which it is authorised to frame rules or regulations. This position is settled by the decision of the Apex Court in Balasubramaniam v. Tamil Nadu Housing Board ( AIR 1988 SC 6 ). If, in relation to a particular selection, it is proposed to have a rank list alive for a particular period and it is proposed to fill up the vacancies that may arise during the currency of the rank list from it, there should be a decision to that effect by the competent body of the University and it should be published along with the notification itself. In this case, Ext.P3 notification is totally silent, regarding the life of the rank list or appointment to vacancies other than those notified. In view of the above position, the University can fill up only the vacancies notified by it. xxx" 18. There the selection in question was for appointment in the University. In this case the selection was for appointment in aided College. In view of the above position, the University can fill up only the vacancies notified by it. xxx" 18. There the selection in question was for appointment in the University. In this case the selection was for appointment in aided College. Even though the number of vacancies of Assistant Professor in Botany was stated as 1 in Ext.P1, the notification contained another provision that "the number of vacancies shown is likely to change." Therefore there was no question of any loss of opportunity to any qualified candidate to offer his/her candidature for the selection. 19. Now the next question to be examined is the relevant provisions in the University Statutes governing selection and appointment of the Private Colleges. Chapter XLV of the MG University Statute 1997 deals with 'the conditions of service of Private College Teachers and members of non-teaching staff'. Part B of this chapter deals with the conditions of service of Private College Teachers. Statute 2 therein provides that appointment of teachers by direct recruitment shall be made only after advertisement in all editions of one National English daily and all editions of two Malayalam daily news papers having wide circulation and in University news. Statute 3 provides for constitution of selection committee. Clause 3 thereof relates to appointments in private colleges which have entered into agreement with Government for direct payment. It provides that appointments are to be made from a list of candidates prepared by a selection committee consisting of 2 representatives nominated of the educational agency, one member nominated by the educational agency from among Principals, Head of the Departments and Professors of the Colleges under it, with the concurrence of the University and one member chosen by the educational agency from among officers of the Secretariat not below the rank of Joint Secretary to Government or District Collector and one subject expert chosen by the educational agency from the list of subject experts maintained by the University. Statute 3 relating to the Constitution of Selection Committee reads as follows. 3. Constitution of selection committee for appointments;- 1. Statute 3 relating to the Constitution of Selection Committee reads as follows. 3. Constitution of selection committee for appointments;- 1. In order to ensure that appointments of teachers by direct recruitment are on the basis of merit, such appointments shall be made by the educational agency from a panel of 3 names for every vacancy recommended by the selection committee constituted by the educational agency and consisting of the following members namely (a) to representatives of the educational agency, nominated by it, one of whom shall be the chairman of the selection committee; (b) the principal of the college; (c) the head of the Department in the subject concerned and (d) one expert in the subject nominated by the Vice Chancellor 2. three members including the member referred to in item (d) shall constitute the quorum for a meeting of the selection committee 3. three members including the member referred to in item (d) shall constitute the quorum for a meeting of the selection committee 3. Notwithstanding anything contained in clause 1 in the case of any educational agency which has voluntarily entered into a written agreement with the government for the direct payment of salaries to the teachers and non-teaching staff of its Arts, Science or Training Colleges, appointments of teachers, whether provisional or permanent, shall be made only from a list of persons prepared by a selection committee constituted by the educational agency and consisting of the following members namely:- (a) two representatives of the educational agency nominated by it; (b) a person nominated by the educational agency from amongst the Principal, Heads of Department, and Professors of the College or where the educational agency has two or more colleges, from amongst the Principals, Heads of Departments and Professors of all those colleges; Provided that before making any such nomination the educational agency shall obtain the concurrence of the University; (c) one member chosen by the educational agency from amongst the officers of the Secretariat not below the rank of Joint Secretary to Government and the District Collectors; Provided that if for any reason the Government consider that the officer chosen by the educational agency cannot be deputed to the selection committee, the educational agency shall choose another officer from amongst the said categories; (d) one expert chosen by the educational agency from a subject wise list of experts prepared by the University containing not less than 5 members and made available to the educational agency on its request at the beginning of each academic year; Provided that if the educational agency considers that the list is insufficient, it may request for more names to be included in the list and the University shall, as far as possible, comply with such request. 4. A representative of the Educational Agency referred to in item (a) of clause (3) or the member referred to in tem (b) of that clause, as may be decided by the educational agency, shall be the chairman and the Convener of the Selection Committee constituted under this clause. 5. The selection committee constituted under clause (1) or clause (3) shall meet as often as it is necessary and the decision of the majority taken at such meeting shall be final. 20. 5. The selection committee constituted under clause (1) or clause (3) shall meet as often as it is necessary and the decision of the majority taken at such meeting shall be final. 20. Method of Selection of teaching staff by the Educational Agency is provided in Statute 12 as follows: "(1) (a) The Educational agency shall have the option to have all the members of teaching staff selected purely on the basis of merit from candidates of all the communities or reserve every alternate vacancy or 50% of the vacancies for being filled up on the basis of merit from among candidates of a particular community to be specified by the educational agency. (b) The educational agency shall specify in the advertisement to be made under Statute 2 as to whether the selection is for an open vacancy or for a vacancy reserved for the members of a particular community. In the former case, applications shall be invited from among all the qualified persons who are interested in getting the appointment and in the latter, applications shall be invited only from among qualified members of that community. (c) It shall be open to the Educational Agency to convert an open vacancy into a vacancy for the community and vice-versa after the advertisement of the vacancy; Provided that in case no suitable candidate belonging to the community is available for appointment against the reserved vacancy, it is open to the educational agency to postpone the selection and invite fresh applications from the members of all communities. Where applications are invited from members of all communities, the Educational agency shall make the appointment on the basis of merit only and the and the vacancy reserved for the community shall be treated as lapsed for want of suitable candidates. The fact that such a vacancy shall not by itself entitle the educational agency to claim another vacancy in its place to be filled up from the members of the Community. (2) The method of selection specified in clause (1) shall apply to all vacancies which arise in all departments of the colleges under the educational agency. The educational agency shall clearly indicate in its statement before the selection committee as to how the vacancies have occurred and whether the vacancies for which interview is to be conducted fall within the merit quota or in the quota reserved for the community. The educational agency shall clearly indicate in its statement before the selection committee as to how the vacancies have occurred and whether the vacancies for which interview is to be conducted fall within the merit quota or in the quota reserved for the community. The selection of candidates from the community shall be based on merit. (3) The selection committee shall prepare the select list on the basis of merit and appointments shall be made only in the order of merit as indicated in the list. No candidate who has been included in the select list on the basis of merit shall be passed over by a person ranked lower in the select list. Where candidates are bracketed for merit purpose, the selection committee shall specifically mention the fact in the select list. (4) The select list prepared by the selection committee shall not normally contain more than three times the number of vacancies likely to arise in one academic year. If the selection committee proposes to include more names in the list, it shall record the reasons for the same. (5) A select list prepared by the selection committee shall remain in force only for a period of one year. 21. Academic year is defined under Statute 2 (1) (a) of chapter 1 as well as Statute 1 (1) (a) of part A of chapter 45 of the 1997 Statutes to mean a period of 12 months commencing from the 1st day of June and ending with May of the following year. The question whether the 2nd vacancy could be filled up has to be examined in the light of the aforesaid provisions. In this case vacancies have arisen on 1st June of the succeeding academic year, but within a period of one year of the select list. In this case, the one vacancy notified was filled up by the 1st rank holder. The notification indicated that the number of vacancies were likely to vary. Clause 2 of Statute 12 provides that the educational agency shall indicate in the statement before the selection committee as to how the vacancies occurred. The retirement vacancy which arose on 1st June could have been included in the statement, since it was a retirement vacancy which could be anticipated. But there is no material to show that the statement before the selection committee contained that vacancy for which selection was to be made. The retirement vacancy which arose on 1st June could have been included in the statement, since it was a retirement vacancy which could be anticipated. But there is no material to show that the statement before the selection committee contained that vacancy for which selection was to be made. According to the respondents the select list was prepared only for one vacancy. Statute 2 provides for filling up the vacancies based on the rank in the select list. In the case of Colleges which are under direct payment system, there is no restriction as to the minimum number of candidates to be included in the select list. Therefore the appointment against 2nd candidate can be given only if the selection committee was informed about that vacancy and it has taken that into consideration, while preparing the panel. In the absence of such a consideration by the selection committee, no more appointments can be made from the select list. 22. Therefore the contention of the petitioner that the vacancy which arose within one year of the select list is liable to be filled up does not arise for consideration, when the details of the 2nd vacancy were not furnished to the selection committee and the selection committee had not prepared the panel for the 2nd vacancy also. Therefore the rank list has to be treated as having exhausted on appointment of the first rank holder, as held in Suresh's case as well as in Chijitha's case (supra). 23. According to the respondents, the select list was prepared only for one vacancy and therefore the select list itself exhausted on appointment made to that notified vacancy. But nothing prevented the respondents from including the anticipated vacancy, since the notification itself provided for a change in number of vacancies. 24. Even though Dr. George Abraham relied on the judgment in Sunilkumar's case (supra), on a reading of that judgment, it appears that question regarding filling up the vacancy which is not notified did not arise there for consideration. 24. Even though Dr. George Abraham relied on the judgment in Sunilkumar's case (supra), on a reading of that judgment, it appears that question regarding filling up the vacancy which is not notified did not arise there for consideration. In the above circumstance, even if it is found that the vacancy which arose in the next academic year, was liable to be filled up since it arose within one year, the 2nd vacancy could not have been filled up from a rank list which was prepared without considering the 2nd vacancy which arose on retirement or otherwise and the statement given to the selection committee did not contain that list, as required under clause 2 of Statute 12. In the above circumstances, writ petition fails and is dismissed.