Candidates In Rank List Have No Right To Demand That State Should Report All Vacancies : Supreme Court

The Supreme Court has held that candidates included in a ranked list do not have a right to claim that all vacancies must be reported by a government agency. While saying that the agency cannot be arbitrary when choosing to not report vacancies to the Public Service Commission, the Court added that if the State offers proper explanations for not reporting the vacancies, judicial interference must be uploaded.

In the instant case The Director of Indian System of Medicine and another versus Dr.Susmi CT and another, the Supreme Court found fault with the Kerala Administrative Tribunal's interim order directing the reporting of 28 vacancies in the post of Medical Officer(Ayurveda) in the Department of Indian System of Medicine.

The Court also disapproved the Kerala High Court's judgment which dismissed the Department's challenge against the KAT order.

"It is 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 see", observed the Supreme Court bench comprising Justice UU Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi.

The Supreme Court added that in some cases "the State may be lethargic, or even may not wish to report vacancies".  "In such situations", the Court added, "undoubtedly the individuals awaiting appointment may have recourse to judicial remedies".  However, the procedure in all such cases would be to consider the state's response.

The Court referred to the precedent Shankersan Dash v. Union of India 1991 (2) SCR 567, which held that the State is under no legal duty to fill up all or any of the vacancies. At the same time, the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons, the decision had added.

Here, the Department had explained to the Tribunal that promotions could not automatically result in vacancies, having regard to the fact that excess number of Medical Officers were on the rolls. The Supreme Court held that the KAT passed the interim order without any material, on the first date of hearing. Later, the interim order was confirmed by the KAT after hearing the Department, without considering its explanation.

"There is nothing on record to suggest that the government was tardy in reporting or advising, or was intentionally dragging its feet. This order was made at the first hearing, without providing the department with any opportunity to respond to the demand for an interim order", the Supreme Court judgment authored by Justice Ravindra Bhat stated.

"...the KAT in our opinion, should not have inquired into the matter, once it was reported that all vacancies that could be reported, had been reported- as is evident from the reply filed by the department, as well as the tabular chart in it", the Court held.

'Cavalier approach' of High Court

The petition filed by the Department against the KAT order was dismissed by the High Court on the ground of delay and laches. The High Court also held that the Department had not filed petitions against the orders passed in favour of all applicants. Taking exception to the High Court's approach, the Supreme Court remarked,  "This court is of the opinion that the approach of the High Court was to put it mildly, cavalier".

"...the High Court should have considered the matter on merits, given that the issue involved, had large ramifications", the Court observed.

The Court allowed the appeal of the Department and set aside the judgment of the High Court and the order of the KAT.

Case Title : The Director of Indian System of Medicine and another versus Dr.Susmi CT and another

Citation: LL 2021 SC 720

Appearances: Senior Advocate Pallav Sisodia for appellant; Advocate PB Suresh, Noor Muhamed for respondents

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