The Director of Indian System of Medicine & Anr. Etc. v. Dr. Susmi C.T. & Anr. Etc.

i.e. those who were applicants before the KAT - argued that this Court should not interfere with the impugned orders. Learned counsel contended THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE v. DR. SUSMI C.T. & ANR. ETC. [S. RA VINDRA BHAT, J.] that although in terms of the rules, the life of the ranked list was two years, nevertheless it was extended by one more year. Counsel submitted that Rule 14 of the rules obliged the KPSC to advise candidates for all vacancies reported and pending before it, and vacancies which could be reported for the period during which the ranked list was alive. 14. It was therefore submitted that the department’s omission to report 28 vacancies and other additional vacancies which a rose 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 appl icants)to seek judicial remedies. The KAT after thoroughly examining a ll the materials and considering the contentions made before it correctly held that there were adequate vacancies which had to be r eported. The department did not disclose any sound rationale for not reporting such vacancies. In these circumstances the interim order dated 14.11.2017 was meant to and did complete justice to the parties. 15. Learned counsel particularly relied upon the reasoning of the KAT in its order dated 03.02.2018 (in O.A. 1900/2017). He submitted that the KAT took note of the Government order dated 20.06. 2017 permitting 115 Medical Officers to the post of Senior Medical Officers which resulted in 115 vacancies during the currency of the ranked list. These in terms of Rule 14 had to be reported. The absence of any sound reason for not being reported, justified the KA T’s final operative directions. 16. Mr. Noor Muhamad, learned counsel appearing for some of the applicant candidates, also relied upon Rule 14. He further contended that the department’s position that the KAT’s order wit h respect to vacancies arising after the promotion order dated 20.06.2017 is justified. Those vacancies necessarily had to be reported to t he KPSC for appointment and further process. He also submitted that the pos ts and promotions were governed by the Indian System of Medicines (Kerala Service Rules, 2005). It was submitted that the relevant category of posts i.e. Senior Medical Officers were to be filled only b y promotion from the cadre of Medical Officers. The Departmental Promotion Committee convened for promotion of 140 Medical Officers to the post of Senior Medical Officers which resulted in 115 vacancies. This was consciously taken into account; the order was also considered by the KAT which issued directions. In these circumstances the High Court was justified in rejecting the Department’s Writ Petition. 579 Reasoning and conclusions 17. Before proceeding with the discussion on merits, it is necessary to extract the relevant rules. Rules 13 and 14 are reprodu ced below: “13. The ranked lists published by the Commission shall remain in force for a period of one year from the date on wh ich it was brought into force provided that the said list will conti nue to be in force till the publication of a new list after the ex piry of the minimum period of one year or till the expiry of three years whichever is earlier: Provided that the above rule shall not apply in res pect of ranked lists of candidates for admission to Trainin g Course that leads to automatic appointment to Services or posts a nd that in such cases the Ranked Lists shall …in force after o ne year from the date of finalisation of the Ranked Lists or after one month from the date of commencement of the course in respect of the last batch selected from the list within a period of one year from the date of finalisation of the rank ed lists whichever is later. Provided further that the provisions of the proviso above mentioned shall not be applicable for the selection for admission to the Forest Rangers Course and also for admission to the Diploma Course in Forestry for whi ch selections have to be made annually in accordance with the instructions of the Government of India issued from ti me to time. For these selections, the Ranked Lists will be in force only for a period of three months from the date of finalisation of the Ranked Lists or one month from the date of commencement of the course whichever is later. Provided further that the Commission may take steps for t he preparation of a new ranked list wherever necessary even before the expiry of the period of one year of the ranked lis t, by inviting applications but that the ranked list pre pared in pursuance of the said notification shall be brought into force only after the expiry of the period of one year of th e existing ranked list. THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE v. DR. SUSMI C.T. & ANR. ETC. [S. RA VINDRA BHAT, J.] Provided further that a ranked list from which no ca ndidate is advised during the period of one year from the d ate on which it was brought into force shall be kept in force till the expiry of three years from the said date and in a case where no candidate is advised from the ranked list till the exp iry of the said period of three years, the duration of the ranked l ist shall be extended by the Commission for a further peri od of one year or till at least one candidate is advised from the list whichever is earlier. Provided further that if the Commission is satisfie d of the existence of a general ban not exceeding one and a half year in the aggregate duration declared by the Government on the reporting of vacancies, to the Public Service Commission, th ey shall have the power to keep alive the ranked lists which ar e normally due to expire during the period of the abov e said ban or within 7 days of the cessation of the ban, for a furthe r period of 30 days from the date of cessation of ban . If the commission is satisfied of the ban and its consequences they shall issue a notification keeping alive the ranked lis t in the above manner and shall advise candidates to the vacanc ies which actually arose during the normal period of validit y of the ranked list and certified to be as such by the Appointing Authorities reporting vacancies to the Commission. 14. The Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive in the order of prior ity, if any, and in the order of merit subject to the ru les of reservation and rotation, wherever they are applicable. Provided that the advice of candidates by the Commi ssion from the ranked list kept alive under the 5th Proviso to …..be confined to the vacancies that actually arose durin g the normal period of validity of the ranked lists. Rule 13 and certified to be as such by the Appointing Authorities repor ting vacancies to the Public Service Commission. Note: The prolongation under the 5th proviso to Rule 13 shall not be deemed to be part of the normal period of validit y of the ranked list under Rule 13.” 581 18. It is evident, therefore, that candidates can expect tha t their claim vacancies which occur during the currency of a ranked list, upon their being advised by the KPSC, would be considered. This obligation, so to say, is because of the term in Rule 14 that the KPSC “shall advise candidates for all the vacancies reported and pending befo re them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive.” If one keeps in mind, that the KPSC’s obligation arises after the vacancies are reported, it is apparent, that as a prerequisite for that obligation, the vacancies should occur, and should be reported. 19. In the present case, the department’s clear posi tion in its affidavit, before the KAT was that all vacancies were reported, and that only 5 vacancies that had to be filled from amongst candidates with disabilities, were unfilled. This is quite apparent from the tabular chart, which disclosed the particulars of the vacancies that had arisen- during the currency of the ranked list, as well as those reported, and th e final tally of vacancies which existed, as on the date when the ranked list expired, i.e 18.11.2017: THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE v. DR. SUSMI C.T. & ANR. ETC. [S. RA VINDRA BHAT, J.] 20. The basic premise for the KAT’s direction – whic h was affirmed by the High Court - was that 28 vacancies were not re ported and that 15 others arose. The KAT also formed the opinion that a large number of vacancies arose in the Medical Officers’ ca dre, on account of promotion orders dated 20.6.2017. 21. This court notices that there was no dispute about the figures provided by the department, in the tabular chart. These r eflected the government’s ongoing engagement, and concern that the benefit of appointment of all those who could be given appointment duri ng the currency of the ranked list, was provided. Even as late as on 17.11.2017, vacancies were reported; between 19.10.2017 and 17.11 .2017; 37 vacancies were advised. There is also no dispute that the advice led t o further appointment of successful candidates. This being the posi tion, the KA T, in this court’s opinion, without any material, proceeded to direct the department to advise 28 vacancies on 14.11.2017. There is nothing on record to suggest that the government was tardy in reporting or 583 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. 22. In the final order, the KAT virtually confirmed the interi m order, and proceeded to entirely discount the department’s stand that the promotion of some medical officers to the higher gr ade, did not automatically lead to existence of vacancies. The depa rtment had explained, in its affidavit, that the entire cadre of Medical Officers (714) with senior medical officers (237), was 951. The department’s affidavit had stated that the promotions were not perceived as ratio promotions, as a result of which vacancies in the cadre of Medical Officers could not be inferred. Further, according to the department, as in June 2017, the strength of Medical Officers was 851, in excess of the sa nctioned cadre strength. It was contended that for these reasons, no vaca ncies could be said to have arisen. However, the KA T rejected that submission; and the High Court confirmed its orders. 23. This court is of the opinion that the approach of the Hi gh Court was to put it mildly, cavalier. When the department appr oached the High Court under Article 226 of the Constitution, its petition w as rejected on the ground of laches, despite the fact that the main order of the KAT was given just a year before presentation of t he 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 w rong, because the department had approached the KAT with a review, which was pending. Furthermore, even if that were so, the High Court should have considered the matter on merits, given that the issue involved, had large ramifications. Shenoy & Co v. Commercial Tax Officer 6 is an authority for the proposition that the state or any public agency, cannot be precluded from challenging a judgment, on the gr ound that it approaches this court, filing an appeal against only one party. Even if in that case, the normative basis of the judgment under appeal is disturbed, and the issue concerns a matter having public ramifications, such as tax, or – in this case, recruitment, the final judgment would bind all concerned. In the present case too, therefore, the High Court’s reasonin g that the state had not filed petitions against other persons, was flawed; that ipso 6(1985) 2 SCC 512 THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE v. DR. SUSMI C.T. & ANR. ETC. [S. RA VINDRA BHAT, J.] facto should not have precluded an examination of the merits of the KAT’s orders. 24. As noticed earlier, the right of those who find a position in the ranked list, is to be advised against vacancies which ar ise during the currency of the list, and which are reported. In this case, the candidates complained that some vacancies had been kept back and not reported. 25. The right of selected candidates (as those in a ranked list are) was explained by a five-judge bench of this court in Shankersan Dash v. Union of India7 in the following manner: “It is not correct to say that if a number of vacan cies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasi ble right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and o n their selection, they do not acquire any right to the post . Unless the relevant recruitment rules so indicate, the Stat e is under no legal duty to fill up all or any of the vacancies. How ever, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the va cancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as ref lected at the recruitment test, and no discrimination can be permitted.….” 26. It, is therefore, as against vacancies that are rep orted 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 such proceedings, the government or the concerned agency can furnish a suitable explanation. If that is found to be arbitrary, appropriate directions may follow. However, the procedure in all s uch cases, would be to consider the state’s response. In the pr esent case, the KAT in this court’s opinion, entirely misdirected itself in making an 7 1991 (2) SCR 567 585 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. Furthermore, the KA T 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. 27. For the above reasons, it is held that the impugned judgment and orders of the High Court cannot be sustained. The said judgment and order, as well as the orders of the KAT are, accordingly se t aside. The appeals are allowed, but without order on costs. Devika Gujral Appeals allowed. THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE v. DR. SUSMI C.T. & ANR. ETC. [S. RA VINDRA BHAT, J.]