IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 WP(C).No. 8752 of 2011(R) ------------------------- PETITIONER(S): --------------- MINU MATHEWS, AGED 35 YEARS, D/O.LATE MATHEWS VARKEY, THAZCHAYIL KALLOOR, KAVUMBHAGOM, THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.REJI GEORGE SMT.MANJU RAJAN RESPONDENT(S): --------------- 1. THE HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR GENERAL, ERNAKULAM, KOCHI-31. 2. THE REGISTRAR(SUBORDINATE JUDICIARY), HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 3. STATE OF KERALA, REP.BY THE ADDL.CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R1-R2 SRI.B.UNNIKRISHNA KAIMAL FOR R1-R2 GOVT. PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 8752 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd day of March, 2011. J U D G M E N T The High Court of Kerala issued a notification inviting applications for appointment to the post of District Judges in the Kerala Higher Judicial Service for filling up 6 vacancies. In the selection which ensued, the High Court was faced with a situation where there were no sufficient successful candidates for satisfying the reservation principles in the appointments. Therefore, the High Court decided to give moderation marks uniformly to all candidates for the written test. While the selection was pending, the age limit prescribed was also changed by amending the Rules and the High Court decided to apply the amended age limit for the said selection also. Certain persons were excluded from consideration on the ground of age limit. Some of them challenged the said action, which ultimately resulted in a judgment in their favour. Therefore, the rank list had to be revised considering them also. As a result, some of the persons who had already been appointed pursuant to the selection had to be sent out. In order to save them, the High Court addressed the Government requesting the Government to exercise powers under Rule 39 of the Kerala State and Subordinate Service Rules so as to fill up further 4 vacancies also in the selection which have arisen in the meanwhile. Some other candidates had also challenged the action of the High Court in giving moderation marks for the written examination. That resulted in the judgment of the Division Bench in Jayachandran v. High Court of Kerala, 2010(4) KLT 49, whereby the grant of moderation marks was found to be unsustainable. In that judgment, this Court directed reconsideration of the selection confining to the 7 candidates who originally passed the written W.P(C) No. 8752 of 2011 -: 2 :- examination. Consequent to the same, 4 vacancies were filled up by the selected candidates. Since the other 2 vacancies were set apart for reserved candidates, they were not filled up for want of eligible candidates in the selection. Subsequently, for filling up the vacancies available, the High Court issued Ext. P5 notification inviting applications. The petitioner is challenging that notification. The petitioner was one of the 7 candidates who passed the written test conducted in the earlier selection without moderation. According to the petitioner, in view of the judgment in Jayachandran's case (supra), the petitioner ought to have been appointed to one of the 10 vacancies available without doing which the High Court cannot initiate selection process for filling up the balance vacancies. The petitioner seeks the following reliefs: “a. To declare that the selection pursuant to Ext. P1 notification is governed by unamended Kerala Higher Judicial Service Rules, 1961 and the vacancies, which were liable to be filled up on the date of Ext. P1 notification, were 14 numbers as per the Rules. b. To declare that Ext. P5 notification issued by the 1st respondent without making appointments as directed by the Division Bench in its judgment in W.P(C) No. 16207/2010 is illegal and arbitrary. c. To issue a writ of certiorari or any other appropriate writ or order quashing Ext. P5 notification issued by the 1st respondent. d. Issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 1 and 2 to consider the petitioner for appointment as District and Sessions Judge with effect from 30.3.2010, together with all consequential benefits to which the petitioner is entitled to.” 2. I have heard the learned counsel for the petitioner, the W.P(C) No. 8752 of 2011 -: 3 :- learned Government Pleader and the learned senior counsel appearing for the High Court. 3. In Jayachandran's case, this Court held as follows: “32. In the result, we are of the opinion that the decision of the Selection Committee to grant moderation is unsustainable in law. Therefore, all further steps pursuant to the said decision would be unsustainable. The resultant situation is that only the seven candidates who were initially found eligible on the basis of their having secured the cut off marks in the examination should have been subjected to the viva-voce examination and an appropriate decision regarding their suitability to fill up the originally advertised 6 posts should have been taken by the 1st respondent in accordance with law. 33. However, in view of the subsequent decision of the 1st respondent to fill up 10 posts, the 1st respondent may now proceed with the selection from out of the 7 abovementioned candidates in accordance with law by recasting the select list. In view of the fact that some of the 10 posts sought to be filled up are required to be filled up by candidates belonging to reserved categories, if on such an exercise any of the vacancies of the abovementioned 10 posts sought to be filled up cannot be filled up for lack of a suitable candidate, the respondents should now resort to the procedure contemplated under R. 15(a) of the K.S & S.S.R. It goes without saying that it should be open to the respondents to prescribe such cut off marks as the minimum qualifying marks in such limited recruitment as they deem fit and proper in the circumstances.” The petitioner heavily relies on paragraph 33. According to her, because of the direction in paragraph 33 directing filling up of 10 posts, without filling up all the 10 posts from the earlier selection, the High Court could not have proceeded further to fill up the vacancies available, in which case, the petitioner is entitled to be appointed to one of those vacancies. 4. I am of opinion that in paragraph 32 of the judgment itself, the Division Bench has directed only to fill up the original W.P(C) No. 8752 of 2011 -: 4 :- advertised 6 posts, 4 of which have been filled up and the other 2 could not be filled up under law in view of the fact that reservation principles have to be followed in filling up the vacancies. As far as the observations in paragraph 33 are concerned, that is only a permission to the High Court which the High Court could have complied with only if the Government exercises powers under Rule 39 of K.S and S.S.R. In view of the subsequent developments and change of situation, that exercise has also become not feasible or necessary since the object for which the High Court recommended exercise of powers of the Government under Rule 39 does not survive. In the above circumstances, I am not satisfied that the petitioner can, by invoking paragraph 33 of the judgment, insist that the High Court should have filled up all the 10 vacancies which were available at the time of finalisation of the selection pursuant to the earlier notification inviting applications for 6 vacancies. This is all the more so since it is settled law that only notified vacancies can be filled up and for filling up subsequent vacancies, fresh selection process has to be initiated. In the above circumstances, I do not find any merit in the writ petition. Accordingly, the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/ [TRUE COPY] P.S TO JUDGE.