Candidates Cannot Claim A Right Per Se Regarding Vacancies That Are Not Reported - Supreme Court

By a Judgment of December 8, a Bench of the Supreme Court has set aside the orders passed by the Kerala Administrative Tribunal (KAT) and the Kerala High Court regarding the reporting of vacancies in the post of Medical Officer (Ayurveda), Assistant Insurance Officer in the Department of Indian System of Medicine.

The three-judge Bench of Justice U. U. Lalit, Justice S. Ravindra Bhatt, and Justice B. M. Trivedi was hearing a petition relating to the vacancies that had arisen in the Indian System of Medicine and Insurance Medical Department and how the department should also have reported further the vacancies to the Kerala Public Service Commission when vacancies were created due to promotions.

Senior Counsel Mr. Pallav Sisodia appeared for the Appellant-Director, while Counsel Mr. P. B. Suresh appeared for the Respondents and Counsel Mr. Noor Muhamad appeared for some of the Applicants - Respondents during the proceedings before the Court.

The Respondent in the matter had approached the Kerala Administrative Tribunal and sought the direction that the department must report 65 vacancies for the post of Medical Officer (Ayurveda) and Assistant Insurance Officer to the Kerala Public Service Commission. An interim application was also filed before the Administrative Tribunal seeking direction to advise that 28 vacancies should also be reported to the Commission. KAT had observed that by a promotion eligible Medical Officers (Ayurveda) were promoted as Senior Medical Officers, because of which 28 vacancies arose which had to be reported. In addition, the KAT also noted 15 other vacancies had to be treated as additional and that KPSC was supposed to select candidates against those vacancies.

The Department then approached the Kerala High Court which dismissed the petition on the ground that it was filed belatedly.

The Appellant contended before the Supreme Court that the High Court overlooked the important feature that the KAT completely ignored the department's counter-affidavit which clearly disclosed that as against 163 vacancies which arose during the period of the currency of the ranked list - 158 candidates had been advised and 5 vacancies could not be filled since they were earmarked for persons with disabilities.

Further, it was argued that KAT fell into error by holding that there were several vacancies that had arisen due to the promotion of Senior Medical Officers.

Mr. Sisodia further pleaded that as per the affidavit filed by the Director on 03.08.2018 which clearly stated that the order dated 20.06.2017 merely sanctioned higher grade and had promoted Medical Officers as per the ratio of 1:3 and the officials were allowed to continue under the same institutions. It was a categorical position of the Department that no vacancy arose in the entry cadre.

While relying on Rule 13 and Rule 14 of Kerala Public Service Commission Rules of Procedure,1976, the Appellant argued that due to the directions of the KAT, appointments have been made in excess of what the Rules permit.

The Respondents, on the other hand, contended that the department's omission to report 28 vacancies and other additional vacancies which arose on account of the promotions of incumbent Medical Officers (to the post of Senior Medical Officers) entitled the candidates awaiting appointments and whose names were reflected in the rank list (like the applicants) to seek judicial remedies.

The Apex Court noted, "There is nothing on record to suggest that the government was tardy in reporting or advising, or was intentionally dragging its feet."

The Court also observed that the order of the KAT was made at first hearing without providing the department with an opportunity to respond to the demand for an interim order.

Additionally, the Court opined, "The approach of the High Court was, to put it mildly, cavalier. When the department approached the High Court under Article 226 of the Constitution, its petition was rejected on the ground of laches, despite the fact that the main order of the KAT was given just a year before presentation of the petition; furthermore, the department had also filed a review petition. As far as the other writ petitions are concerned, the High Court gave them a short shrift saying that in one of the applications allowed by the KAT, the order had been allowed to become final. This approach was wrong, because the department had approached the KAT with a review, which was pending."

Further, the Bench held, "It, is therefore, as against vacancies that are reported to the KPSC, that the candidates have some semblance of a right. However, as far as those not reported are concerned, the candidates cannot claim a right per se. It is possible that in given situations, the state may be lethargic, or even may not wish to report vacancies. In such situations, undoubtedly the individuals awaiting appointment may have recourse to judicial remedies."

"In the present case, the KAT in this court's opinion, entirely misdirected itself in making an inquiry whether vacancies had arisen in June 2017, with promotion of some Medical Officers. As the department explained, those promotions could not automatically result in vacancies, having regard to the fact that excess number of Medical Officers were on the rolls," the Bench added.

The Court held that the impugned judgments of the High Court could not be sustained.

Accordingly, the Court set aside the impugned judgments of the High Court and allowed the appeal.

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