Notification For Recruitment Can Only Be For Actual And Anticipated Vacancies, Not Future Vacancy: Kerala High Court

“Only vacancies within the current selection or recruitment year, whether actual or reasonably anticipated, can be included in the notification. These constitutional principles would override any statutory provision to the contrary.”

The Court said that there should be no appointment beyond the number of vacancies already advertised in the notification. The Court observed that if a list prepared for recruitment is used as a continuous source of recruitment, it could create a vested interest sidelining the new pool of candidates. The Court observed that the list expires when the notified number of vacancies is filled. There are specific circumstances like when the selected candidate does not join, the Government can use the list to appoint the person that comes next in rank.

The Court noted that it is clear as per various decisions of the Supreme Court that appointing beyond the number of vacancies advertised the fundamental rights guaranteed under Article 14 (right to equality) and Article 16(1) (equality in matters of public employment) of the Constitution. The Court observed that when vacancies are filled beyond the vacancies notified, it affects the rights of a person who became eligible after the application deadline. If appointments are made beyond the notified vacancy, they would be denied a chance to apply to these new vacancies.

The Court held that an authority can appoint beyond the number of vacancies advertised only in rare and exceptional circumstances or in emergent situations and that too only when a policy decision is taken based on a sound rationale. This exception was laid down by the Apex Court in Prem Singh and Others v Haryana Electricity Board and Others (1996) and Rakhi Ray and Others v High Court of Delhi and Others (2010).

Background of the Case

The present matter was concerning the appointment of Upper Primary Teachers to a High School run by Guruvayoor Devaswom. A notification was issued in October 2019 to fill 2 vacancies that arose in the school. The Managing Committee in December 2019 decided to fill the 2 vacancies alone from the select list that was prepared after the recruitment process. As per that decision, candidates who came first and second on the list were given appointments.

However, on a request made by the headmistress of the School, the Managing Committee in January 2020 decided to extend the life of the list by one year so that there would be no disruption of classes due to the want of teachers. The Head Mistress later informed the Manager that 4 vacancies are bound to arise – 1 due to retirement and 3 due to promotions.

On this information, the Manager appointed the candidates ranked 3 to 5 from the select list. However, before these candidates could join, the Managing Committee passed a resolution revoking their appointment on the reason that the appointment above the notified vacancies was made without their knowledge or permission. Further, 3 of the vacancies which were bound to arise did not happen, as the 3 existing teachers did not get the expected promotion.

These candidates, whose appointments were revoked approached the High Court. The Single Judge dismissed their petition saying that since the advertisement was for filling up 2 vacancies, the select list expired as soon as that appointment was made. One of these candidates, Smt. Reema preferred an appeal against this decision before the Division Bench. The Division Bench held that she could be appointed as it was in the same academic year as the notified vacancies and the appointment cannot be considered to be discriminatory or prejudicial.

After the Division Bench allowed the appeal, the appellants in the present case approached the Court saying that they and Smt. Reema are similarly placed and they deserve the same benefit as Smt. Reema. The Division Bench referred the matter to the Full Bench as they were unable to agree with the decision of the appeal.

They observed that as per the law laid down by the Supreme Court, an appointment beyond the notified vacancy can be done only in rare or emergency situations. The Division Bench did not think the instant case fell into the rare or emergent category.

Thus, the full bench of the Court held that the initial decision of the Managing Committee was to use the select list to fill up the notified vacancy alone.

The decision subsequently taken to extend the life of the select list was not a policy decision nor taken after considering the facts and circumstances. The Court observed that the decision of the Division Bench allowing the appointment of Smt. Reema R. cannot be accepted as valid law and dismissed the present appeal.

Counsel for the Petitioners: Advocates M. R. Anison, V. Bhargavi, P. A. Rinusa

Counsel for the Respondents: Adv. T. K. Vipindas

Case No: WA No: 275/ 2022

Case Title: Binod B. Kumar and Another v Guruvayur Devaswom and Others

Citation: 2024 LiveLaw (Ker) 567