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2021 DIGILAW 598 (KER)

REEMA. R, W/O. SHAJU SANKAR v. GURUVAYUR DEVASWOM

2021-07-07

A.K.JAYASANKARAN NAMBIAR, GOPINATH P.

body2021
JUDGMENT : A.K.Jayasankaran Nambiar, J: The petitioner in W.P (C) No.16179/2020 is the appellant herein aggrieved by the judgment dated 05-01-2021 of the learned Single Judge in the writ petition. The brief facts necessary for a disposal of the appeal are as follows:- 2. The petitioner was appointed as U.P.S.A. in the school under the management of the Guruvayur Devaswom on 12-06-2020 vide Ext.P7 appointment order. It would appear that in the selection process that followed Ext.P1 notification dated 16-10-2019 that invited applications for 2 posts of U.P.S.A in the school, the petitioner was ranked No.3 in a rank list prepared by the respondents. While the 2 posts that were notified were filled immediately thereafter, by appointing the persons ranked No.1 & 2 in the rank list, the Headmistress of the school made a request dated 14-12-2019 before the school management for filling up future vacancies also from the same rank list. Acting on the request of the Headmistress the managing committee extended the validity of the rank list by one year so that additional appointments could be made to 4 other vacancies that were to arise in the immediate future. It would appear that of the said 4 anticipated vacancies, one vacancy arose in the academic year 2019-2020 itself, consequent to the retirement of a U.P.S.A on 31-03-2020. The remaining 3 vacancies were expected to arise in the subsequent academic year ie.2020-2021. 3. The Administrator of the Guruvayur Devaswom proceeded to appoint 3 U.P.S. As by Ext.P7 order dated 12-07-2020. The appellant herein was one among the appointees and she was appointed to the first vacancy that arose on 31-03-2020. However, when the appellant sought permission from the Administrator/Manager of the school to join duty, she was served with Ext.P9 communication dated 26-02-2020 stating that Ext.P7 appointment order had been cancelled based on a resolution taken by the managing committee of the Guruvayoor Devaswom dated 15-06-2020, a copy of which is produced as Ext.P10 in the writ petition. It was impugning Ext.P9 communication, to the extent it affected the appellant herein, that W.P (C) No.16179/2020 was preferred. For the sake of completion of facts it would be necessary to note that the other two appointees had also approached this court aggrieved by Ext.P9 order through W.P (C) No.16927/2020. 4. It was impugning Ext.P9 communication, to the extent it affected the appellant herein, that W.P (C) No.16179/2020 was preferred. For the sake of completion of facts it would be necessary to note that the other two appointees had also approached this court aggrieved by Ext.P9 order through W.P (C) No.16927/2020. 4. Both the writ petitions were heard together by the learned Single Judge who found that the resolutions taken by the managing committee of the Guruvayur Devaswom to appoint the petitioners was wholly illegal, in as much as it envisaged appointments to vacancies over and in excess of the notified vacancies in Ext.P1 notification. The subsequent decision of the managing committee (Ext.P10) was therefore seen as one that corrected an obvious mistake by taking note of the settled law on the subject. The writ petitions were accordingly dismissed. 5. In the present appeal filed by the petitioner in WP (C) No.16179/2020, it is the contention of the learned Senior Counsel Sri. P.K. Suresh Kumar that the resolution of the managing committee in Ext.P10 clearly revealed that the decision taken was only to cancel the rank list, to the extent it led to the appointments of the petitioners in W.P (C) No.16927/2020 and did not affect the appointment of the appellant, who was the petitioner in W.P (C) No.16179/2020. He points out that the appellant herein was appointed to the vacancy in the school that arose on 31-03-2020, pertaining to the very same academic year as the notified vacancies, and not to vacancies that arose in the subsequent academic year, to which the petitioners in the other writ petition were appointed. In particular it is pointed out that nowhere in Ext.P10 resolution is there a mention of any irregularity in the appointment of the appellant herein, to the vacancy that arose in the school on 31-03-2020, and the discussion that led to the resolution was entirely in respect of those vacancies that arose in the school in 2020-2021, consequent to the promotion of two U.P.S.A's as H.S.A's. In as much as the petitioners in W.P (C) No.16927/2020 had been appointed to those vacancies, Ext.P10 resolution of the managing committee applied only to them, and not to the appellant herein. Exhibit P9 communication of the Administrator/Manager of the school, that relies on Ext.P10 resolution of the managing committee to cancel the appointment of the appellant herein is stated to be illegal and unjustified. Further, and in response to the submission of the learned Standing Counsel for the Devaswom who relied on Ext.R2 (b) resolution dated 16-07-2020, it is the submission of the learned Senior Counsel for the appellant that the said resolution also clearly indicates that the discussion and decision in Ext.P10 resolution was confined to the case of the petitioners in WP (P) No.16927/2020 alone. The learned Senior Counsel would submit that while the normal rule is that vacancies in excess of the notified ones cannot be filled up from a list drawn up pursuant to such a notification, Courts have recognized the right of the employer to do so in exceptional circumstances. He referred to the decision in Rakhi Ray and others v. High Court of Delhi and others (2010) 2 SCC 637 , in this regard. He also referred to the judgment of this Court in W.P (C) No.28438/2016 to contend that an appointment once made cannot be cancelled, as in Ext.P.9. 6. Percontra, the learned Standing Counsel for the Devaswom referred to the decisions in K. Lakshmi v. State of Kerala and others (2012) 4 SCC 115 & Arup Das and others v. State of Assam and others (2012) 5 SCC 559 to establish that vacancies in excess of the notified vacancies cannot be filled up. He also contends that an appointment order came to be issued to the appellant on account of a mistake committed by the administrator of the Devaswom who is also the manager of the school and that the Managing Committee, therefore, had taken a decision to correct such mistake. 7. On a consideration of the rival submissions, we find force in the contention of the learned Senior Counsel for the appellant that the resolutions of the managing committee of the Guruvayur Devaswom, as seen from Ext.P10 and Ext.R2 (b), clearly reveal that when confronted with a situation where there were additional vacancies, over and in excess of the notified vacancies, that had to be filled in the post of U.P.S.A in the school, the managing committee had initially resolved to fill the said additional vacancies also from the rank list that was drawn up in connection with Ext.P1 notification. No doubt the settled law on the subject of filling up of vacancies in establishments that answer to the definition of 'State' under Article 12 of the Constitution of India is that vacancies in excess of those notified to the public for selection cannot be filled except through a separate selection procedure initiated through a different notification. The said Rule however is not an absolute one and can be deviated from in exceptional circumstances where the exigencies of the service mandate a different procedure. Rakhi Ray (supra) holds: - “7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as “the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution”, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to “improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale”, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851], Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat [1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 : (1994) 28 ATC 78], State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 [ (1994) 1 SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500 : AIR 1994 SC 736 ], Prem Singh v. Haryana SEB [ (1996) 4 SCC 319 : 1996 SCC (L&S) 934] and Ashok Kumar v. Banking Service Recruitment Board [ (1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996) 32 ATC 235 : AIR 1996 SC 976 ].)” We hold that the appointment of the appellant was a conscious decision taken and one taken acting upon Ext.P6 request of the Headmistress. Such a decision, in our view, clearly falls with the exception carved out by the Supreme Court in Rakhi Ray (supra). Further, in cases where the employer answers to the description of 'State' under Article 12 of the Constitution of India, such procedure must not be arbitrary or vitiated by malafides. In the instant case, the managing committee of the Devaswom took note of the shortage of UPSA's in the school and decided to fill the future vacancies also from the rank list that was prepared in connection with the two notified vacancies. They soon realised the impropriety of their actions and took steps to cancel the appointments made to vacancies that arose only in the subsequent academic year. As regards the vacancy that arose in the same academic year as the filling up of the notified vacancies, it is apparent that the reason mentioned in Ext.10 did not relate to that vacancy and the appointment made thereto of the appellant herein. It was accordingly that Ext.P10 resolution was passed cancelling the rank list to the extent it led to the appointment of the petitioners in W.P (C) No.16927/2020 who had been appointed to the vacancies that arose in the subsequent academic year, consequent to the promotion of 2 U.P.S.A’s as H.S.A’s in the school. Ext.P10 resolution and Ext.R2 (b) resolution clearly reveal that at no point of time did the managing committee ever intend to disturb the appointment of the appellant herein who, unlike the other appointees, had been appointed to a vacancy that existed in the school in 2019-2020 itself. The said vacancy was also one that arose consequent to the retirement of an existing U.P.S.A and not consequent to the impending promotion of existing U.P.S.A's as H.S.A's. In as much as the nature of the vacancy to which the appellant was appointed was different and distinct from that to which the other appointees were appointed, as also prior in point of time to the said other vacancies, the differential treatment accorded by the Devaswom in the matter of filling up of the vacancies, cannot be seen as discriminatory or prejudicial in any manner. Accordingly, we allow the writ appeal by setting aside the judgment of the learned Single Judge in relation to writ petition No.16179/2020 and by quashing Ext.P9 impugned by the appellant in the said writ petition to the extent it pertains to the appellant. Accordingly, we allow the writ appeal by setting aside the judgment of the learned Single Judge in relation to writ petition No.16179/2020 and by quashing Ext.P9 impugned by the appellant in the said writ petition to the extent it pertains to the appellant. The appellant herein shall also be entitled to all consequential benefits flowing from Ext.P7 order of appointment, w.e.f the date she takes charge, following the judgment.