Case: THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE &amp; ANR. ETC Vs. DR. SUSMI C.T. &amp; ANR. ETC

and concern that the benefit of appointment of all those who could be given appointment during 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 to further appointment of successful candidates. This being the position, the KAT, in this courts 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 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 interim order, and proceeded to entirely discount the departments stand that the promotion of some medical officers to the higher grade, did not automatically lead to existence of vacancies. The department had explained, in its affidavit, that the entire cadre of Medical Officers (714) with senior medical officers (237), was 951. The departments 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 sanctioned cadre strength. It was contended that for these reasons, no vacancies could be said to have arisen. However, the KAT rejected that submission; and the High Court confirmed its orders. 23. This court is of the opinion that the approach of the High Court was to put it mildly, cavalier. When the department approached the High Court under Article 226 of the Constitution, its petition was rejected on the ground of laches, despite the fact that the main order of the KAT was given just a year before presentation of the 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 wrong, 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 (1985) 2 SCC 512 is an authority for the proposition that the state or any public agency, cannot be precluded from challenging a judgment, on the ground 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 Courts reasoning that the state had not filed petitions against other persons, was flawed; that ipso facto should not have precluded an examination of the merits of the KATs orders. 24. As noticed earlier, the right of those who find a position in the ranked list, is to be advised against vacancies which arise 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 India 1991 (2) SCR 567 in the following manner: It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible 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 on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies 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 reflected at the recruitment test, and no discrimination can be permitted.…. 26. It, is therefore, 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 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 such cases, would be to consider the states response. In the present case, the KAT in this courts opinion, entirely misdirected itself in making an 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. In the present case, the departments clear position 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 the final tally of vacancies which existed, as on the date when the ranked list expired, i.e 18.11.201720. The basic premise for the KATs direction – which was affirmed by the High Court - was that 28 vacancies were not reported and that 15 others arose. The KAT also formed the opinion that a large number of vacancies arose in the Medical Officers cadre, 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 reflected the governments ongoing engagement, and concern that the benefit of appointment of all those who could be given appointment during 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 to further appointment of successful candidates. This being the position, the KAT, in this courts 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 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 interim order, and proceeded to entirely discount the departments stand that the promotion of some medical officers to the higher grade, did not automatically lead to existence of vacancies. The department had explained, in its affidavit, that the entire cadre of Medical Officers (714) with senior medical officers (237), was 951. The departments 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 sanctioned cadre strength. It was contended that for these reasons, no vacancies could be said to have arisen. However, the KAT rejected that submission; and the High Court confirmed its orders.23. This court is of the opinion that the approach of the High Court was to put it mildly, cavalier. When the department approached the High Court under Article 226 of the Constitution, its petition was rejected on the ground of laches, despite the fact that the main order of the KAT was given just a year before presentation of the 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 wrong, 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 (1985) 2 SCC 512  is an authority for the proposition that the state or any public agency, cannot be precluded from challenging a judgment, on the ground 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 Courts reasoning that the state had not filed petitions against other persons, was flawed; that ipso facto should not have precluded an examination of the merits of the KATs orders.24. As noticed earlier, the right of those who find a position in the ranked list, is to be advised against vacancies which arise 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 India 1991 (2) SCR 567   in the following manner:It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible 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 on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies 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 reflected at the recruitment test, and no discrimination can be permitted.….26. It, is therefore, 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 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 such cases, would be to consider the states response. In the present case, the KAT in this courts opinion, entirely misdirected itself in making an 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 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.