Kerala High Court
High Court Of Kerala vs High Court Of Kerala on 25 September, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942
WA.No.855 OF 2020
AGAINST THE JUDGMENT IN WP(C) 11034/2019(R) OF HIGH COURT
OF KERALA
APPELLANTS/RESPONDENTS 3 & 4 IN WPC NO.11034/2019:
1 HIGH COURT OF KERALA,
REPRESENTED BY ITS REGISTRAR GENERAL,
HIGH COURT, KOCHI, ERNAKULAM-682031.
2 REGISTRAR (SUBORDINATE JUDICIARY),
HIGH COURT OF KERALA, HIGH COURT,
KOCHI-682031.
BY ADV. SRI.ELVIN PETER P.J.
RESPONDENTS/PETITIONERS & RESPONDENTS 1, 2 & 5 TO 13 IN THE
WP(C):
1 SUJIT NAIR. K.M.,
SECTION OFFICER, HIGH COURT OF KERALA , AGED 42
YEARS, S/O K.C.NAIR SARANG, MANIMALA ROAD,
EDAPPALLY P.O., KOCHI, ERNAKULAM-682024.
WA No.855/2020
-:2:-
2 SUJA A ,
AGED 51 YEARS,
JUNIOR SUPERINTENDENT, JUDICIAL FIRST CLASS
MAGISTRATE COURT, SASTHAMCOTTA, CHILLA,
ONAMPALAM, MULAVANA P.O.,
KOLLAM DISTRICT-691503.
3 SATHEESAN T. ,
AGED 44 YEARS,
SENIOR CLERK (HG), SUB COURT, VATAKARA
PUTHANPURAYIL, THRIVENI HOUSE, PERAMBRA P.O.,
KOZHIKODE-673525.
4 HARIKRISHNAN M. , ADVOCATE,
AGED 34 YEARS,
S/O R.MURALEEDHARAN, KIZHAKKE VYLOPPADICKAL
HOUSE, THEKKE NADA, VAIKKOM, KOTTAYAM-686141.
5 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, HOME (C)
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
6 ADDITIONAL CHIEF SECRETARY,
HOME (C) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
7 MS. ANEESA A,
NYAYADHIKARI, GRAM NYAYALAYA, CHITTUMALA AT
PERINAD, KOLLAM DISTRICT, KERALA-691601
RESIDING AT SHIJI NIVAS (H) AYANTHI, VARKALA
P.O., TRIVANDRUM KERALA -695 141.
8 MR. NIJESH KUMAR P,.
NYAYADHIKARI, GRAM NYAYALAYA, IRIKKUR, KANNUR
DISTRICT-670 593 RESIDING AT POONAKATTIL HOSUE,
MORAYUR POST, MALAPPURAM, KERALA-673 642.
WA No.855/2020
-:3:-
9 MR. ARUN KUMAR P.,
NYAYADHIKARI, GRAM NYAYALAYA, MALAMPUZHA AT
PUDUPPARIYARAM, PALAKKAD DISTRICT-678 731
RESIDING AT PUTHIYACHIRAYIL, KOOTAMKAITHA,
HARIPAD, KUMARAPURAM P.O., ALAPPUZHA, KERALA-
690 548.
10 MS.SHINY M.S.,
NYAYADHIKARI, GRAM NYAYALAYA, PONNANI AT
EDAPPAL AND ADDITIONAL MUNSIFF PARAPPANANGADI,
MALAPPURAM DISTRICT-679583 RESIDING AT
KALLADATH VALAPPIL, KODANAD MEZHATHOOR P.O.,
PALAKKAD, KERALA, -679 534.
11 MS.SOORYA S.SUKUMARAN,
NYAYADHIKARI, GRAM NYAYALAYA, RANNI,
PATHANAMTHITTA DISTRICT-689672 RESIDING AT AJAI
BHAVAN (H), EZHUKONE, EDAKKIDOM P.O., KOLLAM,
KERALA-691 505.
12 MR.KRISHNAPRABHAN R.,
NIYADHIKARI, GRAM NYAYALAYA KUZHALMANNOM AT
THENKURUSSI, PALAKKAD DISTRICT-678 671 RESIDING
AT KAUSHTUBHAM HOUSE, NEDUNGADAPPALLY,
SANTHIPURAM P.O., KOTTAYAM, KERALA-686 545.
13 MS.SALINI B.,
NYAYADHIKARI, GRAM NYAYALAYA, CHAVARA, KOLLAM
DISTRICT-691 583, RESIDING AT AIKKARA VEEDU,
VENJARAMOODU, VENJARAMOODU P.O., TRIVANDRUM-695
607.
14 MS. JAIBY KURIAKOSE,
JUDICIAL FIRST CLASS MAGISTRATE, KODUNGALLOOR,
THRISSUR DISTRICT-680 664 RESIDING AT
PALAKKADAN HOUSE, ADIMALY, IDUKKI 685 561.
WA No.855/2020
-:4:-
15 MS.SUMEY CHANDRAN,
NYAYADHIKARI, GRAM NYAYALAYA, CHENDAMANGALAM AT
PARAVUR AND MUNSIFF-MAGISTRATE, NORTH PARVUR,
ERNAKULAM DISTRICT-683 512 RESIDING AT SUMI
NIVAS (H), THALAYOLAPARAMBU P.O.,
KOTTAYAM-686 605.
R1-4 BY ADV. DR.K.P.PRADEEP
R1-4 BY ADV. SRI.T.T.BIJU
R1-4 BY ADV. SMT.T.THASMI
SRI. T. RAJASEKHARAN NAIR- SR.G.P.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08-09-
2020, THE COURT ON 25-09-2020 DELIVERED THE FOLLOWING:
WA No.855/2020
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JUDGMENT
Dated this the 25th day of September, 2020 Shaffique, J.
The High Court of Kerala on its administrative side and the Registrar (Subordinate Judiciary) of the High Court, respondents 3 and 4 in WP(C) No. 11034/2019, have preferred this appeal challenging judgment dated 12/3/2020, by which the learned single Judge while setting aside Exts.P10 and P10(a) issued a direction to respondents 1 to 4 to appoint the petitioners as Munsiff- Magistrates based on their inclusion in Ext.P3 select list. Exts.P10 and P10(a) are the communications issued by the Registrar (Subordinate Judiciary) of the High Court informing a few of the petitioners that the representations submitted by them pursuant to a direction issued by the Apex Court, stand rejected.
2. The short facts of the case as reflected in the pleadings are as under and the parties are described as shown in the writ petition unless otherwise stated. The High Court invited applications for appointment to the post of Munsiff-Magistrate as per notification dated 18/2/2016 (Ext.P2). The number of WA No.855/2020 -:6:- vacancies notified was 35. Note 1 to the notification indicated that the number of vacancies was likely to increase on the commencement of Gram Nyayalayas sanctioned by the State Government as per GO(MS) No. 86/2011/Home dated 1/3/2011. However, the said note was deleted as per corrigendum notification dated 27/4/2016. Note 2 indicated that the number of vacancies notified was likely to decrease on account of NCA vacancies that may arise during the selection process. Petitioners had applied for the aforesaid post pursuant to Ext.P2 notification. Ext.P3 is the rank list of 68 persons for direct recruitment and 10 candidates for recruitment by transfer. The name of the petitioners appeared in the select list for direct recruitment. Petitioners contended that though as per the information given by the High Court of Kerala under the Right to Information Act, there arose 42 vacancies from 1/1/2015 to 31/12/2016, only 22 vacancies under the general category had been filled up from the select list, apart from 7 candidates in NCA category. Petitioners, therefore, approached the Apex Court by filing WP(C) No.31/2018 invoking Art.32 of the Constitution of India, alleging that they were not being appointed despite the fact that there were WA No.855/2020 -:7:- sufficient vacancies. Before the Apex Court, it was contended that, as per notification issued in the year 2013 for appointment to the post of Munsiff-Magistrates, the probable vacancies was stated to be 74, but due to lack of sufficient vacancies, 66 persons, of which 61 from open category and 5 NCA candidates, were appointed and the balance 13 vacancies in the general category were earmarked for the selection period from 1/1/2015 to 31/12/2016. Petitioners also contended that excess appointments were made pursuant to Ext.P6 selection notification from the 2013 ranked list which resulted in a reduction of appointment from the 2016 ranked list. It is therefore contended that the excess appointments made pursuant to the 2013 notification were illegal and liable to be interfered with. The Apex Court, however, did not interfere with the 66 appointments (61 general category and 5 NCA) made by the High Court pursuant to the selection notification issued in the year 2013. By judgment dated 4/10/2018, the Apex Court further directed that the list should not be operated any more. A contention was raised on behalf of the petitioners that there was some error in calculation with respect to the vacancies which were available to be filled up WA No.855/2020 -:8:- under the 2013 notification, which ought to be filled from the list pursuant to the advertisement issued in 2016. Though it was pointed out by the learned counsel appearing for High Court that there was no such error, the Apex Court observed as under:-
"If any error is pointed out, it will be open to the petitioners to file their representation. The same shall be objectively and sympathetically looked into by the Committee of the High Court on administrative side. In case, any vacancy has been wrongly calculated, let needful be done."
Petitioners, therefore, submitted Ext.P9 series representations. It was pointed out that the High Court had filed an affidavit before the Apex Court stating that there were only 38 vacancies as on 31/12/2014, though 74 (probable) vacancies were notified. Out of the 38 vacancies, 31 were regular and 7 were NCA vacancies. According to the petitioners, anticipating the establishment of 30 Gram Nyayalayas, High Court had sent all the 66 candidates for pre-induction training. It was represented that when actual appointments were effected, the High Court wrongly considered 74 vacancies instead of 61 to accommodate the entire 61 candidates. If the High Court had considered only 61 vacancies, they could have appointed only 52 candidates out of 61, in which event, 9 trained candidates would be in excess. Therefore, it is WA No.855/2020 -:9:- contended that, for the present selection, 13 NCA vacancies is a wrong creation due to the mistake in the calculation of 74 vacancies by the High Court to favour the excess 9 candidates and as a consequence of which, the candidates included in the 2016 ranked list lost 13 vacancies. The said representation was rejected by the High Court as per Exts.P10 and P10(a) which is impugned in the writ petition.
3. In the statement filed on behalf of respondents 3 and 4, it is inter alia stated that during 2013, 3 notifications were issued for filling up the post of Munsiff-Magistrates. Notification No.3/2013 dated 21/3/2013 (Ext.P6) was to fill up 74 (probable) posts. Notification No.1/2013 was issued to fill up 2 NCA vacancies which remained unfilled in the selection pursuant to notification dated 24/8/2009. Notification No.2/2013 was issued to fill up 5 NCA vacancies which remained unfilled pursuant to notification dated 31/1/2012. Merit list in respect of regular vacancies was published on 11/4/2014 consisting of 61 candidates selected for appointment by direct recruitment and 8 candidates selected for 'by transfer' appointment. From the said list, 61 candidates were appointed as Munsiff-Magistrate trainees WA No.855/2020 -:10:- against regular vacancies (53 were direct recruitment candidates and 8 were by-transfer candidates). Simultaneously, 5 NCA candidates were also appointed making a total of 66 candidates. The 66 candidates were appointed taking into account the vacancies that had arisen when the administrative sanction was obtained for the establishment of 30 Gram Nyayalayas. Establishment of Gram Nyayalayas took some time and while the training of the said 66 Munsiff-Magistrates was in progress, Ext.P2 notification dated 18/2/2016 was issued for the appointment of 35 regular vacancies and Ext.P2(a) notification dated 18/2/2016 for the appointment of 2 NCA vacancies (7-5). The NCA vacancies pertaining to 2013 selection could be ascertained as 13 only later when the Munsiff-Magistrates were appointed on 29/6/2016, 4/10/2016, and 9/12/2016. With reference to the 2013 selection, it was pointed out that the vacancy position was ascertained anticipating the establishment of 30 Gram Nyayalayas. With reference to the 2016 notification, it was stated that though the notified vacancy was 35, the actual number of vacancies was only 22 and the remaining 13 vacancies pertain to the 2013 selection and are NCA vacancies. Those vacancies were to be set WA No.855/2020 -:11:- apart for filling up the NCA vacancies that would arise on completion of the regular recruitment process which commenced in the year 2013 and the said recruitment process was not complete at the time when Ext.P2 notification was issued. It is pointed out the NCA vacancies pertaining to the 2013 selection could not be re-notified along with the 2016 selection of regular vacancies as the actual number of NCA vacancies could be ascertained only after the appointment of all the candidates. In Ext.P3 select list as well, it was mentioned that the final select list shall be subject to the availability of notified vacancies. Further, it is contended that the actual vacancies during the period from 1/1/2015 to 31/12/2016 were not 42, whereas 42 is the actual number of vacancies as on 31/12/2016. It is further stated that the Joint Committee of the High Court has considered the factual aspects and resolved to fill up 22 vacancies i.e., 35 notified vacancies less 13 NCA vacancies, and made it clear that the number of vacancies filled up in a selection process should not exceed the number of vacancies notified. Therefore the vacancies that arose over and above the notified vacancies had to be carried over to the next selection year, which was notified and WA No.855/2020 -:12:- filled up in the 2017 selection process.
4. An application has been filed by the High Court as IA No.2/2020 producing certain additional documents. It is stated that after preparation of the rotation list and final appointment of Munsiff-Magistrates pursuant to the 2013 notification, 13 NCA vacancies had arisen. Annexure A1 had been produced to prove the said fact. Since NCA vacancies have to be filled up first by appointing candidates included in the Ext.P3 merit list, which was prepared pursuant to Ext.P2 notification, 7 NCA candidates were appointed. Annexure A1 is the list containing the appointment of the 7 NCA candidates. Thereafter, a rotation list for filling up the 22 vacancies including candidates from the Ext.P3 merit list was made. Annexure A2 is the rotation list. The remaining 6 NCA candidates were notified to be filled up as per notification dated 7/11/2017 which is produced as Annexure A3. In Annexure A3, one NCA vacancy reserved for physically handicapped having a locomotor disability was not notified. In respect of physically handicapped persons, it is normally filled up from the list prepared pursuant to a general notification.
5. As far as the appointments made during the 2013 WA No.855/2020 -:13:- selection is concerned, the Apex Court did not interfere with the same as evident from the judgment dated 4/10/2018 in WP(C) No. 31/2018. The learned Single Judge, therefore, did not interfere with the said appointments in any manner. However, placing reliance on an affidavit filed by the High Court before the Apex Court (Ext.P11), it was observed that 66 vacancies were not available for appointment of candidates from 2013 notification and 28 candidates were appointed as against the vacancies which arose in the year 2015. Learned Single Judge did not believe the version of the High Court that the NCA vacancies could be ascertained only after the appointment of Munsiff/Magistrates. It was also found that the 35 notified vacancies did not include the 13 NCA vacancies and the vacancies in excess of 22 were notified and filled up in the 2017 selection process. Hence, it was held that all the 35 vacancies notified were liable to be filled up from the select list, Ext.P13, without reducing any NCA vacancy. It is pursuant to the aforesaid findings that Exts.P10 and P10(a) were quashed and the impugned directions were issued.
6. Learned counsel for the appellants Sri.Elvin Peter WA No.855/2020 -:14:- would argue that the total number of vacancies notified was 35 out of which 13 NCA vacancies were to be filled up. Only 7 NCA candidates were available and they were appointed. 6 NCA vacancies had to be carried forward. Out of the remaining 22 candidates coming under the general category, 21 were appointed, and one remained NCA. Therefore, there is no excess or wrong calculation of the vacancy position as contended. It is argued that the learned Single Judge committed a serious error in arriving at a finding that the vacancy position was more than the notified vacancies. It is pointed out that the High Court could not have appointed any candidate in excess of the notified 35 vacancies. The High Court could ascertain the actual NCA vacancies covered by the 2013 notification only after all the appointments were finalised and the Munsiff-Magistrates are appointed after completing their training. That apart, the Apex Court itself had concluded the appointment made pursuant to the 2013 notification. Once that selection had become final, the contention that more persons were appointed from the said list cannot be countenanced.
7. On the other hand, learned counsel appearing for the WA No.855/2020 -:15:- writ petitioners supported the stand taken by the learned Single Judge. It was pointed out that there was a clear mistake in the calculation of the number of vacancies which resulted in more persons being appointed from the 2013 list which resulted in the petitioners losing an opportunity to get the appointment. The High Court though was directed to consider the said aspect, has not properly considered the glaring mistake and therefore there is justification on the part of the learned Single Judge to have interfered in the case.
8. We do not think that any of the contentions urged by the writ petitioners and the findings of the learned Single Judge can be sustained. Ext.P6 is the notification dated 21/3/2013 inviting applications for appointment of qualified candidates to the post of Munsiff-Magistrate. The total number of vacancies was stated as 74 (probable). Separate notifications were issued in 2013 to fill up 7 NCA vacancies. Ext.P13 is the list of candidates found eligible for appointment as per the said notification. From the said list, 53 candidates were appointed under the general quota, and 8 from the in-service candidates list. 5 NCA candidates were also appointed from a separate list. Ext.P12 WA No.855/2020 -:16:- reflects the select list of 61 candidates who were appointed from Ext.P13 list and the NCA vacancies. From the above documents, it is rather clear that after the selection process pursuant to the 2013 notification, 13 NCA vacancies were available. Learned single Judge was therefore not justified in observing that 13 NCA vacancies had not arisen during 2013 selection, as it is reflected in Ext.P12 itself.
9. Learned counsel for the writ petitioners have taken a further contention that only 52 candidates ought to have been selected from the said select list and therefore the persons up to Sl.No.61 alone could have been appointed. In fact, the Apex Court in its order dated 4/10/2018 had approved the appointment of 66 candidates with a rider that the list shall not be operated any more. The action of the High Court in making 66 appointments has already been upheld. The Apex Court had only given an opportunity to the writ petitioners to submit a representation when it was submitted that there was some error in the calculation with respect to vacancies in the 2013 list which should have been filled from the list pursuant to the advertisement issued in 2016. Apparently, there is no error in WA No.855/2020 -:17:- calculation with respect to the number of vacancies as far as the 2013 notification is concerned. As already stated, the notification had been issued for filling up probable 38 vacancies and also the vacancies that may arise on account of the creation of Gram Nyayalayas. The Apex Court had approved the appointment of Gram Nyayalayas from the list of candidates selected as per the 2013 notification. Under such circumstances, there is no justification in contending that there was a mistake or error in the number of vacancies and that more persons were appointed as per the said list.
10. Yet another contention urged by the petitioners and upheld by the learned Single Judge was regarding the number of vacancies that had arisen in 2015. It was observed that in an affidavit filed by the High Court, a contention had been taken that in addition to 19 vacancies, 9 posts of Sub Judge would become available so that the Munsiff-Magistrate can be promoted and therefore there will be additional 28 vacancies in 2015. What has been stated by the High Court before the Supreme Court which is produced as Ext.P11 is a possibility and not the actual vacancies. The said affidavit was filed on 18/1/2016 in Civil Appeal WA No.855/2020 -:18:- No.1867/2006 as IA No.147/2016. In the said affidavit, it was mentioned that though a select list of 66 candidates was prepared for appointment pursuant to a notification of 2013, the Apex Court had not permitted to fill up vacancies of the year 2015. It was further stated that the notification was issued taking into account the vacancies which would have arisen up to 31/12/2014 and notification was issued for selection of Munsiff- Magistrates for 81 vacancies. The vacancies were notified as administrative sanction was available for the establishment of 30 Gram Nyayalayas pursuant to which 66 candidates were appointed as Munsiff-Magistrate Trainees. The pre-induction training commenced on 15/12/2014. It is further stated that due to administrative difficulties, Gram Nyayalayas have not been established in the State consequent on which only 38 vacancies have actually arisen against the expected number of vacancies for the notified period i.e., 21/3/2013 to 31/12/2014. Additional 19 vacancies have arisen in the year 2015 which makes the vacancy position to 57 and further 9 vacancies may be available which may be on account of promotion vacancies. Therefore, altogether 66 vacancies would be adequate to absorb all Munsiff-Magistrates WA No.855/2020 -:19:- who have completed the statutory one year training period which will be completed by 14/12/2015. Therefore, a request was made to appoint the 66 Munsiff-Magistrates who have completed their training. Apparently, in this affidavit, the indication was that in addition to the 38 vacancies which have arisen up to 31/12/2014, further 28 vacancies of the year 2015 are available, making it a total of 66. It is admitted that the Apex Court did not permit filling up of the above vacancies. However, in the order dated 4/10/2018 in WP(C) No. 31/2018 filed by the petitioners, Apex Court approved the appointment of 66 candidates as the incumbents were selected and sent for training but they were denied appointment due to delay on the part of the State Government in creating the posts of Gram Nyayalayas. Therefore, the 66 appointments which were demanded as per Ext.P11 was not permitted by the Apex Court. But the 66 appointments made with reference to the vacancies as on 31/12/2014 plus the vacancies of Gram Nyayalayas were approved. These 66 persons were appointed as per the select list prepared as evident from Ext.P12. In other words, the vacancies that had arisen during 2015 were not filled up pursuant to the 2013 notification. Ext.P11 WA No.855/2020 -:20:- was filed before the Apex Court at a stage when the appointment of Gram Nyayalayas could not have been made on account of the fact that there was no sanction from the Government to establish Gram Nyayalayas and therefore, a request was made to fill up posts which would have arisen in the year 2015.
11. We have already indicated that 13 NCA vacancies had arisen during the selection of 2013 and necessarily it had to be filled up in the next selection. Those 13 vacancies reflected in Annexures A1 and Annexure A2 filed along with IA No. 2/2020 is in respect of the 2016 selection. It is from among the 13 vacancies, 7 could be accommodated from the 2016 list, and for the balance, a separate notification had been issued on 7/11/2017 (Annexure A3). There is no dispute about the fact that as per the 2016 notification, only 35 vacancies had been notified of which 13 had to be accommodated in the NCA vacancies. Only 22 persons from the General Category could be accommodated and the unfilled NCA vacancies were carried forward for which a separate notification had been issued. Therefore, the finding that there were more vacancies than 35 cannot be sustained. When the vacancy position had been clearly stated by the High Court, WA No.855/2020 -:21:- there is no reason to doubt the genuineness of the same.
12. In the representations submitted by the petitioners before the Registrar General of High Court, the contention urged was that the High Court had wrongly considered 74 vacancies instead of 61 to accommodate the entire 61 candidates and the 13 NCA vacancies are a wrong creation. The said submission is clearly erroneous as the 13 NCA vacancies that had arisen during the 2013 notification were sought to be filled up during the 2016 notification and the unfilled NCA vacancies were again re-notified. Therefore, the learned Single Judge was not justified in setting aside Exts.P10 and P10(a).
In the result, this appeal is allowed. The judgment of the learned Single Judge is set aside. The writ petition is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P.
Rp JUDGE
WA No.855/2020
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APPENDIX
APPELLANTS' EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE SELECT LIST
ANNEXURE A2 TRUE COPY OF THE ROTATION LIST
ANNEXURE A3 TRUE COPY OF THE NOTIFICATION DATED
7/11/2017 TO FILL UP THE REMAINING 6
VACANCIES.
True Copy
PS to Judge
Rp