Appointment Beyond Advertised Number Of Posts Amounts To Filling Up Of Future Vacancies, Impermissible Under Law : Kerala High Court

The Kerala High Court on Friday ruled that filling up of vacancies over and above the notified vacancies are not permissible in law since it amounts to filling up of future vacancies. 

Justice Raja Vijayaraghavan noted that the impugned advertisement was only for one post and that the candidate who secured the first rank had already joined the post. 

"The appointment beyond the number of posts advertised would amount to filling up of future vacancies, which is impermissible under law."

The respondent bank invited applications for filling up a vacancy for the post of one peon and conducted an examination for the same on 18.01.2020. 

The petitioner took part in the examination and was ranked 4th. A rank list was prepared of 11 persons who scored the maximum marks and it was to be in force for one year. But this was extended for one more year.

The 1st rank holder was appointed to the post. Later, when three more vacancies arose, appointments were made on its merits and persons who were ranked 1 to 3 were already appointed.

Meanwhile, the Joint Registrar General of the Bank received complaints about certain malpractices, but later, the complaint was withdrawn.

The petitioner's case is that since there exist two vacancies for peon and one vacancy in a newly merged branch, he was entitled to secure an appointment being the 4th rank holder.

While the bank was deliberating the same, the Joint Registrar General issued an order stalling the further proceedings.

Aggrieved by the same, he approached the Court. 

Advocate K.V. Rashmi appearing for the petitioner alleged that this order was illegal since the complaint before the Registrar General had been withdrawn.

She further contended that the petitioner had a legitimate expectation of getting an appointment to the post and as the rank list is due to expire on 10.02.2022, he would be subjected to grave hardships otherwise.

Advocates Ameer K.M., M.J. Jesna, Rahmathullah M and Aiswarya Ravikumar appearing for the respondents resisted the petition. 

Notably, Senior Government Pleader Surya Binoy submitted that the notification was issued to fill up only one post and that the advertisement was made to fill up this post.

She pointed out that it was a settled law that vacancies cannot be filled up over and above the number of vacancies advertised.

The counsel argued that with the appointment of the candidate for the only post in respect of which, the consideration came to be made and select list prepared, the panel ceased to exist and has outlived its utility. It was further asserted that a person whose name appears in the select list does not acquire any indefeasible right for appointment.

The Court found force in the submissions advanced by the Government Pleader. 

Reliance was placed on the Supreme Court's decision in State of Orissa v. Rajkishore Nanda [2010 (6) SCC 777] where it was held that vacancies cannot be filled up over and above the number of vacancies advertised as recruitment of candidates in excess of the notified vacancies is a denial and deprivation of the right under Article 14 r/w Article16(1) of the Constitution of those who acquired eligibility for the post in accordance with the statutory rules subsequent to the date of notification of the vacancies. 

The Court noted that the advertisement was only for one post and that the candidate who secured the first rank joined the post. 

Under such circumstances, the bank could not have appointed any further person by preparing a rank list. The select list would get exhausted upon the post being filled and the rest of the candidates will have no right to claim appointment to any vacancy in regard to which selection was not held.

Accordingly, finding that the order of the Registrar General warranted no interference, the plea was dismissed.

Case Title: Mahin K.E v. Kalamassery Service Cooperative Bank & Ors. 

Citation: 2022 LiveLaw (Ker) 76

Click Here To Read/Download The Order