Munsiff-Magistrate Selection : On Filling Up All Existing Vacancies From A Rank List

Brief facts of the Case

By virtue of a notification dated 01.02.2019, the High Court of Kerala invited applications for appointment to the post of Munsiff-Magistrates in the subordinate judiciary of the State. Regarding the manner in which examinations are to be conducted and the vacancies are to be filled up, the concerned Kerala Judicial Service Rules 1991, incorporated crucial amendments, one of which is Rule 7(2).

Precisely, Rule 7(2) provided for filling up of vacancies as and when it arises and exist, during the validity period of the concerned Merit list. The amended Rule came into existence in January 2019, which is prior to the issuance of 2019 notification. After the Selection process, the Registry of the High Court of Kerala forwarded a Merit list of 69 candidates and a Select List of 32 candidates to the Governor for approval.

During the validity period of the current Merit list, huge number of vacancies arose and in the light of the amended Rules, some of the candidates included in the Merit list who are eligible for appointment, approached the High Court with a Writ Petition seeking directions to the Registry to make appointments to the then existing vacancies, in accordance with the Special Rules. A prayer was also made in the petition to declare that the inaction on the part of the Registry in not filling up the existing posts and permitting the continuation of temporary Munsiff-Magistrates in the cadre is arbitrary, illegal and unjust.

Defending the case of the candidates, the current Registry of the High Court of Kerala as contesting respondents, contented that they had "eschewed" the Rule 7(2), as the same is against the directions given by the Apex Court in the case of Malik Mazhar Sultan (3) v. U.P. Public Service Commission [(2008) 17 SCC 703].

The Single judge and the Division Bench of theKerala High Court, in view of the settled principle that a State Rule prevails over a direction and after analysing the intent and purpose of the amended Rule and all relevant documents connected therewith, allowed the claim of the candidates and directed the Registry to fill up the vacancies in accordance with the rules. It was also observed that the rules were amended after considering the directions of the Apex Court in the Malik Mazhar Sultan's case.

At the initial hearing of SLP, when the candidates appeared as caveators, the Supreme Court expressed its view that the Judgment of the Division Bench is prima facie correct. Thus, the Court by its order dated 17.11.2020 directed the Counsel appearing on behalf of the High Court Registry, to have a further discussion with the administration of the Kerala High Court and apprise the Court of the "considered position" in the matter. But the affidavit filed thereafter by the Registry do not contain any statement to the effect that the matter was placed either before the Administrative Committee or the Full Court of the High Court or the Chief Justice of the Kerala High Court, for taking a considered view. Instead, the contentions made in the said unopposed affidavit, finally led to the reversal of the Division Bench decision.

Notably, the State was in favour of making further appointments in accordance with the rules before the Division Bench. After concluding the hearing of SLP, the same was numbered as corresponding Civil Appeals and the judgement was pronounced on 11.01.2021. Setting aside the judgment of the Division Bench, the Supreme court held in para 58 at page 63 of the Judgment:

"Candidates who have ranked lower in the 2019 selection and were unable to obtain appointments cannot appropriate the vacancies of a subsequent year to themselves. To allow such a claim would be an egregious legal and constitutional error."

Before we analyse the above dictum in the light of actual facts, it is imperative to go into the huge number of Temporary Munsiff-Magistrates appointments taking place in the State of Kerala and how it was sought to be tackled by the amended Rule 7(2).

Preferring Temporary Munsiff-Magistrates at the cost of quality of the subordinate judiciary

Any statement made in reference to the system of "Temporary Munsiff-Magistrates" can be viewed skeptically as the subject is not seen discussed elsewhere. So, I rely on the statement contained in a D.O Letter dated 27.09.2018 issued by the then Chief Justice of Kerala High Court, Mr. Justice Hrishikesh Roy addressed to the Chief Minister asking to expedite the implementation of the amended Rules. To quote:

" You may be aware that, this Court had taken a drastic step of repatriating 52 Munsiff-Magistrates who were appointed under Rule 9 of the Kerala Judicial Service Rules on temporary basis. Such an extreme step was taken after evaluating and assessing the performance of some of the officers. It came to the notice of the High Court that there were various complaints about the quality of performance of the temporary Munsiff-Magistrates which brought ignominy to the system. High Court does not want to do experiments once again,and that made us to contemplate amendments to the Rules."

I emphasise the number "52" to show the number of unfilled vacancies which arose when the Registry tried to apply the "directions of the Malik Mazhar Sultan's case" to the selection process in the State. (the number shown is limited to those repatriated, those in service may even be more)

Interestingly, after the D.O letter mentioned above, the Registry again published a "Merit list of 16 Temporary Munsiff-Magistrates" dated 24.07.2019 and appointed all of them to the unfilled vacancies as on 31.08.2019. This was a time when qualified candidates were available for appointment in the then valid Merit List-2017, and no examination was held in the year 2018. Now the question is whether these facts were brought to the notice of the Apex Court? Regarding these 16 vacancies, the submission made before the Apex Court by the then Registry in their yearly report/affidavit as extracted from the proceedings dated 1.08.2019 in the case of Malik Mazhar Sultan v. State of Uttar Pradesh in Civil Appeal 1867/2006 at page 60 is as follows

"Against 47 vacancies, 31 candidates have been selected and they are presently undergoing training with effect from 1.2.2019. The training period is 12 months and on completion thereof, they will be given orders of posting. The High Court is requested to act accordingly. Insofar as the remaining 16 vacancies are concerned, selection for appointment as Munsiff Magistrate under the provisions of the Kerala Judicial Service Rules has been completed and a list has been forwarded to the Government." (Emphasis supplied)

The statement never gives a hint that the 16 vacancies are filled by way of temporary appointments. According to the Registry, those vacancies are filled up in accordance with the"Kerala Judicial Service Rules" because such temporary appointments were never envisaged under Malik Mazhar Sultan's direction.

Now let us see if Rule 9 of the Kerala Judicial Service Rules, 1991 provides for making such huge temporary appointments. The said Rule reads: -

"Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of the service and there would be undue delay in making such appointments in accordance with these Rules, the appointing authority may appoint a person otherwise than in accordance with these Rules temporarily until a person is appointed in accordance with these Rules."

Further Rule 9(2) provides that "A person appointed under Subrule (1) shall be replaced as soon as possible by an approved candidate qualified to hold the post under these rules."

Anyone would be interested to see what public interest owing to an emergency had arose justifying these many temporary appointments at the cost of qualified candidates and how such huge number of unfilled vacancies exist if the Registry is strictly following yearly selection. The quality of the system should not be compromised merely because Rule 9 do not specify the maximum number of temporary appointments that is permissible.

Looking at the current situation, 47 vacancies exist during the year 2020 and many more would have arisen in 2021 till date. All these vacancies will definitely remain unfilled at least till 2023. Good time for those Temporary Munsiff-Magistrates already in service and the prospective ones waiting outside.

Examining the notion of "Annual Selection" in the context of State of Kerala

Realizing the nuances of recruitment process in each State, the Apex Court in the case of Malik Mazhar Sultan (3) v. Uttar Pradesh Public Service Commission (2008) 17 SCC 703, clarified that appointments have to be made in accordance with the concerned Judicial Service Rules of each State.

If there is no State rule in place, a general guide lines were issued regarding the manner in which the vacancies have to be notified and examinations are to be conducted and in order to fill up vacancies in a time bound manner, a time-line was suggested starting with issuance of notification on 15^th of January of every year ending with publication of a Merit list by 1^st December of the same year and appointments to be made on 2^nd January of the following year.

Let's examine the selection made to the post of Musfiff-Magistrates during the last 8 years in the State of Kerala. No Merit lists were published during the years 2014, 2015, 2018, 2020 and 2021 till date. In none of the examination conducted in the State, a notification was issued in the month of January which culminated with an approved merit list in the month of December of the same year. Admittedly in State of Kerala, appointments to the vacancies cannot be made in the month of January on the following year, as the selected candidates has to undergo a training of one year. The average time gap between two consecutive merit list is about 1.5 to 2 years. This is the perfect situation where the direction of the Apex Court that each State has to make appropriate amendments to their Special Rules and the same has to be followed in the matter of appointment, applies.

Evidently due to long duration of selection process, the mandatory training period of one year and the absence of yearly examination in its true sense, huge number of unfilled vacancies arose and the practice of making temporary appointments to the said post became an order of the day. Realising this, the Full Court devised a system for the seamless filling up of vacancies by qualified candidates in the Merit list. The result is the Amended Rule 7(2) which reads :

"The list approved by the Governor shall come into force from the date of the approval and shall be valid till the notified vacancies and the vacancies that may arise within one year from the date of approval of the list, are filled up or a fresh list comes into force, whichever is earlier."

2019 Recruitment is the first examination held after the implementation of the said rule. At this point, the current Registry raises a defence that they had been strictly following Malik Mazhar direction to the best of their efforts all these years, and they will not follow the Rules as the same is against the said directions.

Whether the submission that the claimants are candidates of "lower rank than the appointed candidates" be justified, when the Last Rank holder in the list is already appointed

"The present dispute has arisen on account of claims made by the candidates who secured rank below the appointed candidates, seeking appointment against vacancies that have arisen after 07.05.2020"

Such an argument is untenable when the last rank holder (69^th rank with 185 marks) in the Merit list is already given appointment by them. The claimants fall in various ranks from Rank no 22 with 219.25 marks onwards. The above statement had a deep impact on the judge's mind as is evident from Para 58 of the judgment which reads,

"Candidates who have ranked lower in the 2019 selection and were unable to obtain appointments cannot appropriate the vacancies of a subsequent year to themselves."

The submissions of the Registry as stated in para 39 at page 34 of the Apex Court Judgment is interesting to note. It reads:

"The appellant has asserted that reading the provisions of Rule 7(2) in a literal context would involve, as Mr V Giri, learned Senior Counsel submitted "a frontal assault" on the provisions of Articles 14 and 16 of the Constitution. In fairness to the learned Senior Counsel, it is necessary to record that it is not the submission of the appellant that Rule 7(2) is invalid. The submission is that it must be interpreted in a manner that will save the rule from a challenge that it violates the principle of equality of opportunity in matters of public employment."

"Number of vacancies and Validity of the Ranked List: 55(Fifty-Five) (Anticipated) - (Vacancies that may arise during the period of validity of the ranked list shall also be filled up from the list. The Ranked list prepared pursuant to this notification shall remain in force for a minimum period of one year from the date on which it is brought into force and shall continue to remain in force until the publication of a fresh list or till the expiry of two years, whichever is earlier)"

This shows that the Registry is well aware that by filling the existing vacancies from a valid Merit list will not violate the fundamental rights of prospective candidates. Notifying the existing and anticipated vacancies, providing validity to the Merit list and filling up of existing vacancies during the validity period as and when they arise - this is the only way to ensure that vacancies are duly filled up by qualified candidates without any room for temporary appointments if strictly followed. The said scheme takes care of even unprecedented delays that may occur in the selection process. The same is the logic behind the disputed Rule 7(2) and to make it in consonance with the Malik Mazhar direction, the validity of the Merit list was limited to one year by 2018 amendment.

Grave factual omission in the Affidavit regarding the Recruitment of the year 2013

In 2013, the Registry notified vacancies taking into consideration the possibility of establishment of some Gramanyayalayas in future. The candidates included in the Merit list 2013 was given training with the intent of appointing them to those vacancies when it arises. But at the time of appointment, the said Gramnyayalayas did not come into existence. Since the rule provided for a validity of three years to the Merit list, the then Registry applied to the Apex Court for a permission to dispense with examinations during the year 2014 and 2015 and make appointments to those future vacancies from the Merit list 2013. Obviously, the actions were condemned by the Apex Court as those vacancies were not actually existing at the time of appointment. Hence the said application was dismissed holding that yearly examination cannot be dispensed with at any cost.

"The significance of these events for the controversy in the present case lies in appreciating the submission of the appellant that the requirement of an annual selection process and adherence to the timelines specified has been considered to be sacrosanct by this Court. It was on this basis that the application filed by the High Court for exempting it from carrying out a selection for 2014-15 was rejected."

But the story is otherwise. The Apex Court in that case had in fact approved appointment of remaining candidates included in the 2013 Merit list towards the vacancies of the year 2014 and 2015 and no examination was conducted during the said period. We may refer to an order of the Supreme Court passed in a case subsequently filed by some future prospective candidates challenging the said appointments made to the vacancies of the year 2014 and 2015 from the Merit list 2013.

By an order dated 4.10.2018 in Writ Petition(s)(Civil) No(s).31/2018, the Apex Court held

"After hearing the learned counsel for the parties, we are of the opinion that the High Court was justified in making 66 appointments pursuant to the advertisement issued in the year 2013. As the incumbents were selected and sent for training and were actually paid stipend also, they could not have been denied the appointment due to delay on the part of the State Government of Kerala in creating the posts of Gram Nyayalayas due to which, some embargo had arisen. However, that has been taken care of by rightly appointing 66 candidates. However, list should not be operated anymore."

Thus, the Apex Court had stood as a "guardian angel" protecting the fundamental rights of the candidates included in the Merit list-2013. They were not made to suffer for the mistakes committed by the appointing authority. In the present case, the candidates are not seeking appointment to any future vacancy but to those vacancies which arose and exist during the validity period of the Merit list. In spite of a concurrent finding on the judicial side of the Kerala High Court, the Registry was not willing to follow the Rules. The only possible inference is that if the rule is strictly complied there won't be enough vacancies left for appointing "Temporary Munsiff-Magistrates".

In my humble view whatever mistakes and drawbacks existed in the system of appointments prior to 2015 were sought to be corrected by way of a comprehensive amendment enacted in the year 2018. So, any reference to the 2013 selection in the present case is unconnected and irrelevant.

Analysing the Apex Court judgment in the background of actual facts involved in the case

In the present case, the Apex Court has proceeded with the available facts and unopposed affidavit in reaching a different conclusion at the SLP stage. Unfortunately, the Apex Court proceeded as if yearly publishing of Merit list happens in the State and thus felt that the only way to ensure the larger vision of quality, efficiency and timely filling up of vacancies, is by harmonizing the disputed rule with the directions in Malik Mazhar and in doing so it virtually made the provision redundant if not lifeless. This is evident from the words of the Apex Court in para 38 at page 34

"We are thus unable to subscribe to the wider submission of the appellant that the directions in Malik Mazhar Sultan (3) will prevail over the provisions contained in Rule 7(2). A better line of approach is to seek an interpretation which will bring harmony between them."

My humble submission here is that when the said Rule 7(2) is clear and unambiguous, instead of taking a "better line of approach" the Apex Court ought to have called for a report from the Full Court or at least the Administrative Committee of the Kerala High Court regarding the basic purpose, intent and working of the said provision in the light of the selection process existing in the State. Reading the judgement, it appears that "harmonisation of the rule with a mere direction" was a conscious decision taken by the Court to wipe out the "less meritorious" candidates from appropriating the "vacancies attributable to the subsequent year".

In reality, the present judgment indirectly approves the practice of keeping vacancies unfilled and preferring temporary Munsiff-Magistrates at the cost of quality of Subordinate judiciary. From the discussions, it is evident that the selection process was neither in accordance with the State Rules nor the directions of the Supreme Court, and the present judgment would leave such actions unchecked in future jeopardising the rights of prospective candidates.

Understanding Rule 7(2) of KJS Rules 1991 as amended in 2018, in the context of Selection process in the State of Kerala

In order to better understand the scheme of Rule 7(2), let's see what is a "selection year" as per the Service rules in the state of Kerala. The Explanation to Rule 15(a) of the Kerala State and Subordinate Service Rules, 1958,

"One Selection Year" for the purpose of the Rule shall be the period from the date on which the rank list of candidates comes into force to the date on which it expires."

A selection year is not the year in which notification is issued. It is the period from which the Merit list came into existence and continues till the date on which the said Merit list expires as provided under the relevant rules. During this validity period of the approved Merit list, multiple select lists can be drawn for filling up vacancies as and when it arises and exist. It is to be understood that during the validity of a Merit list, issuance of another notification is of no consequence under the scheme of the State Rule. What matters is the approval of a subsequent Merit list or the expiry of the validity period of the current Merit List as provided under the rules. Issue of a subsequent notification should not hinder the duly filling up of vacancies from a valid merit list.

If all the above points were brought to the notice of the Court by any of the litigants, the Apex Court would have realised the purpose and intent behind the State rule and would have appreciated the earnest efforts taken by the Full Court, the then Chief justice and the then Registry, in bringing about the crucial amendments and the findings of the Division Bench in upholding the validity of the amended State rule.

Conclusion

The object, intent and purpose behind the implementation of Rule 7(2) is reflected in the interim order passed by the High Court division bench on 25.08.2020.  It reads :