W.P.(C).Nos. 2577/2013 (V) and connected cases v. Staff Selection Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 5TH DAY OF JUNE 2014/15TH JYAISHTA, 1936** ## **WP(C).No. 2577 of 2013 (V)** **--------------------------------------** ## **PETITIONER(S):** - **----------------------** **1. BIJU BABU, AGED 22 YEARS, S/O.BABU, PALAKKAL HOUSE, KANJIRAMCHIRA, ALAPPUZHA.** **2. ABHILASH KRISHNAN, AGED 24 YEARS, S/O.KRISHNAN B.K., BANGLAVU PARAMBIL HOUSE, THALATHURUTH NORTH, KUTHIYATHODE P.O., ERNAKULAM.** **3. MRUTHYNJSYSN.K.R. AGED 19 YEARS S/O.RAJAN.K., KARIKKAVELIL, KULAYETTIKKARA P.O. ERNAKULAM.** **4. VISAKH.A, AGED 22 YEARS, S/O.G.APPUKUTTAN, VADAKKE CHENNADU HOUSE, KOMANA, AMBALAPUZHA P.O., ALAPPUZHA.** **5. RAHUL M.A., S/O.APPUKUTTAN, AGED 22 YEARS, MARANIYIL HOUSE, T.V.PURAM POST, VAIKOM.** **6. SHAMON.H., AGED 21 YEARS, S/O.HASHIM K., NIKARTHIL HOUSE, THURAVOOR P.O. ALAPPUZHA.** **7. THAJUDEEN.P.J., AGED 21 YEARS, S/O.JAMALUDEEN, PUTHUPARAMBIL HOUSE, PERIYAR NAGAR, KUMILY P.O.** **8. AJIL RAJ.A.R., AGED 21 YEARS, S/O.RAJILU M.G., AJIL BHAVAN, ANDA KARANAZHI P.O. CHERTHALA, ALAPPUZHA.** **9. JIBIN.C. PHILIP, AGED 20 YEARS, S/O.C.J.PHILIP, CHEERANKUNNIL HOUSE, AYYAPPAN KOVIL POST, IDUKKI.** ## **BY ADV. SRI.ANEESH JOSEPH** **PJ** **....2/-** **..2..** ## **WP(C).No. 2577 of 2013 (V)** **--------------------------------------** ## **RESPONDENT(S):** **----------------------------** **1. THE STAFF SELECTION COMMISSION, REPRESENTED BY REGIONAL DIRECTOR (KKR), STAFF SELECTION COMMISSION, 1ST FLOOR, 'E' WING, KENDRIYA SADAN, KORAMANGALA, BANGALORE, KARNATAKA - 560 034.** **2. REGIONAL DIRECTOR (KKR), STAFF SELECTION COMMISSION, 1ST FLOOR, 'E' WING, KENDRIYA SADAN, KORAMANGALA, BANGALORE, KARNATAKA - 560 034.** *** ADDL.R3 TO R8 IMPLEADEE** **3. INDO - TIBETAN BORDER POLICE FORCE REPRESENTED BY THE DIRECTOR GENERAL, INDO-TIBETAN BORDER POLICE FORCE, BLOCK NO-2, CGO COMPLEX, LODHI ROAD, NEW DELHI - 110 003.** **4. SASHASTRA SEEMA BAL REPRESENTED BY THE DIRECTOR GENERAL, OFFICE OF THE DIRECTOR GENERAL, SASHASTRA SEEMA BAL FORCE HEADQUARTERS, EAST BLOCK -V, R.K.PURAM, NEW DELHI -110 066.** **5. CENTRAL INDUSTRIAL SECURITY FORCE, REPRESENTED BY THE DIRECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE, HEAD QUARTERS, BLOCK NO.13-CGO COMPLEX, LODHI ROAD, NEW DELHI -110003.** **6. CENTRAL RESERVE POLICE FORCE REPRESENTED BY THE DIRECTOR GENERAL, CENTRAL RESERVE POLICE FORCE HEAD QUARTERS, BLOCK NO.1, CGO COMPLEX, LODHI ROAD, NEW DELHI- 110 003.** **7. BORDER SECURITY FORCE, REPRESENTED BY DIRECTOR GENERAL, BORDER SECURITY FORCE HEAD QUARTERS, BLOCK 10, CGO COMPLEX, LODHI ROAD, NEW DELHI - 110 003.** **PJ** **...3/-** **..3..** **WP(C).No. 2577 of 2013 (V)** **--------------------------------------** **8. ASSAM RIFLES REPRESENTED BY THE DIRECTOR GENERAL,** - **ASSAM RIFLES, LAITUMKHARH POST, SHILLONG, MEGHALAYA - 793011.** **ADDL. R3 TO R8 ARE IMPLEADED AS PER ORDER DATED 31/01/2013 IN IA 1593/2013.** **BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA BY ADV. SRI.T.SANJAY, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 9/4/2014 ALONG WITH WPC. 5741/2013 AND CONNECTED CASES, THE COURT ON 05-06-2014, DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 2577 of 2013 (V)** **--------------------------------------** ## **APPENDIX** **PETITIONER(S) EXHIBITS ------------------------------------EXT.P1: PHOTOSTAT COPY OF THE NOTIFICATION ISSUED BY THE FIRST RESPONDENT DATED 3/12/2011. EXT.P2: PHOTOSTAT COPY OF THE APPENDIX ALONG WITH EXT.P1 NOTIFICATION. EXT.P3: THE PHOTOSTAT COPY OF RELEVANT PAGES OF MARKS OF MALE CONDIDATES PUBLISHED BY THE FIRST RESPONDENT. EXT.P4: THE PHOTOSTAT COPY OF THE LIST PUBLISHED BY THE RESPONDENT FOR KERALA -KARNATAKA REGION. RESPONDENTS' EXHIBITS -------------------------------------EXT.R1(A): TRUE COPY OF THE WRITE-UP.** **/ TRUE COPY / P.S. TO JUDGE** ## **PJ** ## **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~ **W.P.(C).Nos.2577/2013, 5741/2013, 13927/2013, 18090/2013 & 2939/2014** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5[th ] day of June, 2014 ## **J U D G M E N T** These writ petitions are filed by the candidates, who have participated in the recruitment of Constables (GD) in CAPFs and Rifleman (GD) in Assam Rifles, for the year 2012. The writ petitioners voice the same grievance being aggrieved by non filling of the vacancies available for the year 2012, by the candidates who have taken part and got qualified in the examination conducted based on the notification issued by the Staff Selection Commission dated 03/12/2011 alleging that these vacancies being diverted for recruitment for the year 2013. 2. For the purpose of pleadings, W.P.(C).No.2577/2013 is relied on as respondents have filed counter affidavit in the above case and the same has been adopted by them in other cases also. 3. Ext.P1 notification in W.P.(C).No.2577/2013 is dated 03/12/2011. Mode of selection is prescribed in clause No.10 of Ext.P1. State-wise vacancies are available for candidates domiciled in the State. It is stated that the final selection of the candidates will be made in order of **W.P.(C).Nos.2577/2013, 5741/2013, 13927/2013, 18090/2013 & 2939/2014** ## **-:2:-** merit in each category in each State. The minimum cut off percentage of marks prescribed for General and Ex-servicemen is 35% and for SC/ST/OBC is 33%. According to the petitioners, as reflected from Ext.P2, in the State of Kerala, the total tentative vacancies notified for recruitment of male candidates are 849 and for female candidates are 65. 4. The petitioners claim that they are qualified based on the criteria fixed in the notification. However, in spite of available vacancies, as tentatively notified in Ext.P1 notification, only 521 candidates were alone selected and rest of the vacancies that were available at the time of notification are being arbitrarily withheld to pass it over to the recruitment for the year 2013. Ext.P6 in W.P.(C).No. 5741/13 is the notification issued by the Staff Selection Commission for the year 2013. This was issued on 15/12/2012. Petitioners allege that more than 300 vacancies have been notified for the year 2013 and these vacancies were available at the time of Ext.P1 notification. 5. This Court by interim order dated 01/03/2013 stayed all further proceedings pursuant to Ext.P1 notification. The said interim order was modified by another order dated 23/03/2013 by limiting the operation of ## **W.P.(C).Nos.2577/2013, 5741/2013, 13927/2013, 18090/2013 & 2939/2014** ## **-:3:-** stay to actual appointments and the respondents were allowed to continue with the selection process. 6. In the counter affidavit dated 08/03/2013 filed by the respondents 1 and 2 in W.P.(C).2577/2013, it is stated that the vacancies are taken into account as received from the Ministry of Home Affairs, who are the final authority in deciding the number of vacancies. With regard to the non filling of all the announced vacancies, it is stated in para.8 that subsequent to the publication of notification, the Ministry of Home Affairs, which requested the Staff Selection Commission to undertake this recruitment, reduced the number of vacancies to be filled. It is further stated that the recruitment for the year 2013 is being made for filling up vacancies arisen after earlier recruitment. On behalf respondent Nos.1 and 2, an additional statement dated 19/07/2013 was filed along with a petition to accept it. Having gone the reasons in the petition, the above statement is received on record. It is stated in the above statement that number of vacancies notified is tentative and subject to change. Later on, overall 20128 vacancies were decreased due to the deferment of new raising schedule of sectors and Battalions in BSF, ARs and SSB and 22287 **W.P.(C).Nos.2577/2013, 5741/2013, 13927/2013, 18090/2013 & 2939/2014** ## **-:4:-** vacancies were increased due to inclusion of backlog vacancies of the year 2011. It is stated that consequent upon the decrease in vacancies due to postponement of new raising of Battalions in BSF and SSB and ARs, vacancies of Kerala State decreased proportionately to 342. Corresponding increased vacancies by including backlog of the year 2011 for the State of Kerala is only 21 vacancies. It is further stated, vacancies for a recruitment year is calculated annually and fresh notification for the year 2013-2014 was published against the vacancies of CAPFs arisen/to be arisen due to new raising of battalions in CAPFs during the year 2013-14 and anticipated vacancies of 2013-2014 due to retirement etc, and also including the backlog of vacancies of the year 2012-13. 7. The candidates do not have the indefeasible right for appointment nor they do have a vested right for appointment. Notification is only an invitation for considering the candidate for the vacancies earmarked for appointment. Once a candidate is declared successful, according to the merit list prepared, based on the declared number of vacancies, the appointing authority has the responsibility to appoint him. It is admitted position, the vacancies for a recruitment year is calculated annually. It is the **W.P.(C).Nos.2577/2013, 5741/2013, 13927/2013, 18090/2013 & 2939/2014** ## **-:5:-** case of the respondents that vacancies notified as a 849 is based on tentative calculation. However, there cannot be any dispute as to existence of such vacancies, as in the statement filed by respondent Nos.1 and 2, dated 19/07/2013, it is admitted that 342 vacancies in the State of Kerala decreased due to postponement of new raising of Battalions in BSF, SSB and ARs. It is further admitted that the number of vacancies which increased due to backlog of the year 2011, pertaining to Kerala, was only 21. It is to be noted that notification issued for the year 2013-2014 was on 15/12/2012. There is no denial of allegation that more than 300 vacancies were notified for recruitment for the year 2013-2014 . The respondents also do not have a case that entire vacancies will arise on account of retirement in the year 2013. It may be true, some of the vacancies will arise on account of retirement. This could be easily ascertained with facts. However, respondents did not state actual number of vacancies that may arise due to retirement in the year 2013. Thus, it is clear, those vacancies, which allege to have been reduced in the year 2012 is restored in the year 2012 itself as the notification is issued, based on the existing vacancies and anticipated vacancies. This Court cannot accept the contention of the respondents that **W.P.(C).Nos.2577/2013, 5741/2013, 13927/2013, 18090/2013 & 2939/2014** ## **-:6:-** vacancies that were available which alleged to have been reduced were not there, while issuing subsequent notification on 15.12.2012. Nothing is placed before this Court to assume that the vacancies notified are on account of anticipated vacancies due to retirement. In view of the admitted fact that 342 vacancies decreased during the process of selection, it has to be assumed that vacancies were available as revealed from subsequent notification dated 15.12 2012. The respondents are duty bound to explain how these vacancies, notified for the year 2013-14, arose. In the absence of any valid explanation, this Court is of the definite view that vacancies were available to accommodate the petitioners. 8. In **Shankarsan Dash vs. Union of India [(1991) 3 SCC 47]** it was held by the Hon'ble Supreme Court that “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”. The **W.P.(C).Nos.2577/2013, 5741/2013, 13927/2013, 18090/2013 & 2939/2014** ## **-:7:-** respondents admitted reduction of 342 vacancies. According to the respondents, these vacancies were reduced in the year 2012 due to some policy decisions. Even though, no material is placed before this Court to accept this contention, respondents are unable to show that how these vacancies sprung up when notification for 2013-14 was issued in the same year itself. Therefore, there is absolutely no _bona fide_ to accept the contention of the respondents that the vacancies were not available for recruitment, for the year 2012. It is settled position of the law, when vacancies are available for the notified year, those vacancies are to be filled from the candidates who have applied based on the notification issued for the recruitment of that year. It is apposite to quote decision of the Hon'ble Supreme Court in **Asha Kaul (Mrs.) and Another vs. State of Jammu and Kashmir and others [(1993) 2 SCC 573]** , see para.8, which reads as follows: “It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chander Marwaha; Mani Subrat Jain v. State of Haryana; State of Kerala v. A.Lakshmikutty) but that is only one aspect of the matter. ## **W.P.(C).Nos.2577/2013, 5741/2013, 13927/2013, 18090/2013 & 2939/2014** ## **-:8:-** The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category, - in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government -- the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any Government can adopt such a stand with any justification today.” Considering the number of petitioners, who approached this Court, they are far less than the number of vacancies notified for the year 2013-14. These writ petitions are liable to be allowed, directing respondents to consider the petitioners for selection for the recruitment year 2012, based on their merit and satisfying other conditions including reservation for selection. This shall be done by taking into account the number of petitioners in these writ petitions. The remaining vacancies can be filled up from fresh list notified for subsequent recruitment for the year 2013-14. It is made clear that the writ petitioners alone need to be given the benefit of this judgment. The **W.P.(C).Nos.2577/2013, 5741/2013, 13927/2013, 18090/2013 & 2939/2014** ## **-:9:-** entire exercise for selection for the year 2012 shall be completed within a period of two months from date of receipt of a copy of this judgment. These writ petitions are, therefore, allowed. **SD/-** ## **A.MUHAMED MUSTAQUE, JUDGE** ms