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

4. The Director had filed petitions challenging orders of the Kerala Administrative Tribunal (hereafter referred to as the KAT) which had required the reporting of 28 vacancies in the post of Medical Officer (Ayurveda), Assistant Insurance Officer in the Department of Indian System of Medicine (hereafter referred to as the posts).5. The Kerala Public Service Commission (hereafter referred to as the KPSC) issued a notification on 19.11.2014 eliciting applications from amongst eligible candidates for the posts. The first respondent along with several others applied for these posts. These candidates were included in the ranked list published on 19.11.2014. In accordance with the rules governing KPSC, the Department in question- i.e. Indian System of Medicine and Insurance Medical Service (hereafter referred to as the department) - had to report vacancies for the duration in which the list was operative. According to the procedure prescribed by those rules, vacancies had to be notified and candidates advised, after which they were to be appointed. On 14.11.2017 the first respondent, and others (hereafter referred to as the applicants) preferred proceedings under Section 19 of the Administrative Tribunal Act before the KAT (O.A. 2816/2017) . The applicants sought the direction to the department to report 65 vacancies of the posts to KPSC before the list was to expire i.e. on or before 18.11.2017. An interim application seeking a direction to advice 28 vacancies remaining to be reported to the KPSC, was sought. The interim order was granted on 14.11.2017. Like the respondent in this case, other applicants also moved the KAT with different applications. These were considered and disposed of on 03.08.2018. The KAT took into consideration the pleadings and material before it, as well as the contentions urged. It was contended that about 33 anticipated vacancies were reported on 08.11.2017 and 28 provisional vacancies also needed to be reported which was taken care of by the interim order dated 14.11.2017. The KAT accepted an argument on behalf of the applicants that by a promotion order dated 20.06.2017, eligible Medical Officers (Ayurveda) were promoted as Senior Medical Officers, as a result of which 28 vacancies arose which had to be reported. In addition, the KAT also noted 15 other vacancies had to be treated as additional (over and above the 28 vacancies reported in terms of its interim order) and that the KPSC was bound to select candidates as against those vacancies.6. The Department felt aggrieved and approached the Kerala High Court by filing O.P. (KAT) 256/2019. The High Court dismissed the Writ Petition on 02.07.2019, holding that it had been filed belatedly.7. As far as the other petitions filed by the department were concerned, the High Court took note of the fact that in some cases Review Petitions were filed and after their dismissal Writ Petitions were preferred before it, and in some (O.A. 2342/2017, 2212/2017, 2612/2017 and 2631/2017) the orders remained unchallenged. As a consequence, the High Court held that the finality of the Tribunals order bound the department and consequently it could not maintain the Writ Petitions which were dismissed.

Court's reasoning:
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.