Holding

Probable vacancies under Rule 7(1) comprise only existing vacancies and those reasonably anticipated within the same recruitment year; they cannot include future vacancies of a subsequent year.

Summary

The appeal concerned the interpretation of Rule 7 of the Kerala Judicial Service Rules, 1991 (as amended 2019) regarding the number of "probable vacancies" for appointing Munsiff‑Magistrates. The High Court had held that vacancies arising within a year of the Governor’s approval of the merit list could be filled from that list even if they exceeded the number of vacancies originally notified, effectively allowing 2020 vacancies to be filled from the 2019 select list. The Supreme Court examined whether this reading conflicted with the constitutional guarantees of equality under Arts 14 and 16 and with the Supreme Court’s directions in Malik Mazhar Sultan (3). It concluded that "probable vacancies" must be limited to existing vacancies plus those reasonably anticipated in the same recruitment year, and cannot include future vacancies of the next year. Consequently, the High Court’s decision was set aside and the appeals were allowed.

Issues considered

The proper meaning of "probable number of vacancies" under Rule 7(1) of the Kerala Judicial Service Rules, 1991.
Whether Rule 7(2) allowing the merit list to remain valid for vacancies arising within one year is consistent with the Supreme Court’s directions in Malik Mazhar Sultan (3).
Whether appointments beyond the notified vacancies violate Articles 14 and 16 of the Constitution.

Legislation cited

Constitution of Indias. Article 14, s. Article 142, s. Article 16, s. Article 234, s. Article 235
Kerala Judicial Service Rules, 1991 (as amended 2019)s. Rule 7(1), s. Rule 7(2)
Kerala Public Services Act, 1968s. Section 2(1)

Subjects

service lawjudicial service rulesprobable vacanciesselection processequalityArticle 14Article 16KeralaMunsiff-MagistrateMalik Mazhar Sultanconstitutional interpretation

Judgment

[2021] 1 S.C.R. 289 289

HIGH COURT OF KERALA A
v.
RESHMA A. & OTHERS ETC.
(Civil Appeal Nos. 3974-3975 of 2020)
JANUARY 11, 2021 B
[DR. DHANANJAYA Y CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Service Law: Selection – Vacancies – High Court held that
appointments to the post of Munsiff-Magistrate can be beyond the
number of probable number of vacancies advertised in the C
notification inviting applications – High Court held, on a literal
reading of r.7(2) of the Kerala Judicial Service Rules, 1991 (as
amended in 2019), that vacancies which arise within a year of the
approval of the select list by the Governor should be filled up from
amongst candidates on the list even though this exceeds the number D
of probable vacancies which were notified, unless a fresh list is
notified within a year – Consequence of the decision was that
vacancies attributable to the next selection year, 2020, have to be
filled up from the select list drawn for the previous selection year,
2019 – Challenge to – Held: A harmonious interpretation of r.7(1)
and (2) must be adopted that is consistent with the Art.142 directions E
in Malik Mazhar Sultan (3) case to bring the rules in accord with
the governing principles of constitutional jurisprudence in matters
of public employment – r.7(1) which refers to “notifying the probable
number of vacancies likely to be filled up” does not expressly
indicate what is meant by this expression – The ambit of that phrase F
should receive content and meaning based on what was envisioned
in Malik Mazhar Sultan (3) case – ‘Probable number of vacancies’
is based on computing the existing vacancies and the vacancies
anticipated to occur during the year – To allow the concept of
probable number of vacancies in r.7(1) to trench upon future
vacancies which will arise in a succeeding year would lead to a G
serious constitutional infraction – Vacancies for 2020 must be
allocated to candidates who are duly selected in pursuance of the
recruitment process for 2020 – Candidates who have ranked lower
in the 2019 selection and were unable to obtain appointments cannot
H
289
290 SUPREME COURT REPORTS [2021] 1 S.C.R.

A appropriate the vacancies of a subsequent year to themselves – To
allow such a claim would be an egregious legal and constitutional
error – Kerala Judicial Service Rules, 1991 (as amended in 2019)
– r.7(1) and (2) – Interpretation of Statutes – Harmonious
construction – Judicial Service.
B Service Law: Selection – Process of selection in making
appointments to public posts – Held: Is subject to the guarantees of
equality under Art.14 and of equality in matters of public employment
under Art.16 – The process of selection must comport with the
principles of reasonableness – Constitution of India – Arts. 14 and
C 16.
Service Law: Selection – Anticipated vacancies – Meaning
of – Held: Anticipated vacancies are the vacancies which can be
reasonably contemplated to arise due to the normal exigencies of
service such as promotion, resignation or death.
D Service Law: Selection – Actual and anticipated vacancies –
Difference from future vacancies – Held: Where the authority which
makes a selection advertises a specific number of posts, the process
of selection cannot ordinarily exceed the number of posts which
have been advertised – While notifying a process for appointment,
E the authority may take into consideration the actual and anticipated
vacancies but not future vacancies – Future vacancies which arise
during a subsequent recruitment year cannot be treated as
anticipated vacancies of a previous selection year.
Words and Phrases – Expression ‘probable’ – Meaning of.
F
Allowing the appeals, the Court
HELD:1. The constitutional principle which finds
recognition in the precedents of this Court is that the process of
selection in making appointments to public posts is subject to
G the guarantees of equality under Article 14 and of equality in
matters of public employment under Article 16. The process of
selection must comport with the principles of reasonableness.
Where the authority which makes a selection advertises a specific
number of posts, the process of selection cannot ordinarily exceed

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HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 291

the number of posts which have been advertised. While notifying A
a process for appointment, the authority may take into
consideration the actual and anticipated vacancies but not future
vacancies. Anticipated vacancies are the vacancies which can be
reasonably contemplated to arise due to the normal exigencies
of service such as promotion, resignation or death. Hence, in
B
notifying a given number of posts for appointment, the public
authority may legitimately take into account the number of
vacancies which exist on the date of the notification and vacancies
which can reasonably be accepted to arise in the exigencies of
the service. While the exact number of posts which may fall vacant
due to circumstances such as promotion, resignation or death C
may be difficult to precisely determine, the authority may make a
reasonable assessment of the expected number of vacancies on
these grounds. However, future vacancies conceptually fall in a
distinct class or category. Future vacancies which arise during a
subsequent recruitment year cannot be treated as anticipated
D
vacancies of a previous selection year. Vacancies which would
arise outside the fold of the recruitment year would not fall within
the ambit of anticipated vacancies. For it is only the vacancies,
actual and anticipated which would fall within the course of the
selection or recruitment year that can be notified when the
selection process is initiated. These are constitutional principles E
to which statutory edicts are subordinate. [Para 45][329-C-H]
2.1. The Kerala Rules 1991 preceded the judgment in Malik
Mazhar Sultan (3) delivered on 4th January, 2007. The amendment
which came into force on 19 January 2019 is evidently after the
decision of this Court. The effort, as a matter of statutory F
interpretation, must be to harmonize the directions which were
issued by this Court in Malik Mazhar Sultan (3) which are relatable
to the jurisdiction of this Court under Article 142 of the
Constitution and the statutory rules. This Court has noticed in
that decision that there were rules in force in the States and the G
Union Territories governing the selection to their judicial service.
While issuing directions in regard to the maintenance of timelines
and for the modalities to be followed in an annual selection, this
Court clarified that this would not impinge upon the independence

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292 SUPREME COURT REPORTS [2021] 1 S.C.R.

A of the Public Service Commission or the role of the High Courts
in the States. [Para 48][331-E-H]
2.2. The object and purpose of this Court in the decision in
Malik Mazhar Sultan (3) was to ensure the expeditious filling up
of judicial vacancies in the State Judicial Services. It was in this
B perspective, that the Court set down strict timelines for
compliance. At the same time, it is evident that the decision did
not provide for other essential aspects such as eligibility,
modalities for conducting the examination and the application of
reservations in making appointments to state judicial services.
C Hence, a significant field in regard to the process of selection
and appointments to the judicial services is not covered by the
decision in Malik Mazhar Sultan (3) for which one has to fall back
upon construing the rules governing the state judicial service in
question. But a stand out feature which emerges from the decision
in Malik Mazhar Sultan (3) must equally be emphasized. The
D judgment of this Court enunciates, in no uncertain terms, that
the process of selection to the state judicial services has to take
place on an annual basis. The court however reserved to itself
the power to exempt in a given situation a State or Union Territory
from compliance with the time schedule or extend time where
E peculiar local conditions require the grant of such an exemption
or extension. The significant aspect of the decision in Malik
Mazhar Sultan (3) is that the recruitment process is initiated each
year with a notification of vacancies and culminates in the
appointment of candidates and their joining service. Once the
process of selection is annual, the notification of probable or
F anticipated vacancies has to be for the selection year. The
expression ‘probable’ means what is anticipated, expected and
likely. The expression thus comprehends the existing vacancies
and those which are anticipated due to retirement, promotion,
death or resignation and to which some vacancies can be added
G to incorporate imponderable events during the recruitment
process. In construing the rules by the State Judicial Service,
more particularly the process of notifying the probable vacancies,
an effort must be made to harmonize the rules with the object,

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HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 293

intent and purpose underlying the directions that were issued A
under Article 142 of the Constitution in Malik Mazhar Sultan (3).
This exercise becomes necessary for another reason. In the
present case, Rule 7(1) refers to “notifying the probable number
of vacancies likely to be filled up”. However, Rule 7(1) does not
expressly indicate what is meant by this expression. The ambit
B
of that phrase should receive content and meaning based on what
was envisioned in Malik Mazhar Sultan (3). [Para 48][332-E-H;
333-A-D]
2.3. Significantly, the entire process which is contemplated
by the decision in Malik Mazhar Sultan (3) is an annual process. C
Hence, the vacancies which are to be notified in the advertisement
which is issued by the High Court are relatable to the recruitment
year for which a selection is carried out. Malik Mazhar Sultan (3)
does not incorporate future vacancies, that is those which lie
beyond the recruitment year for which the selection is to be made.
[Para 48][334-F-G] D

3. While giving meaning and content to the provisions of
Rule 7(1) of the Kerala Rules 1991 as amended, it would be
appropriate to harmonize the ambit of the expression “notifying
the probable number of vacancies” on the basis of the Article
142 directions in Malik Mazhar Sultan (3). This would not do E
violence to the provisions of Rule 7(1), since Sub-rule 1 does not
define what is meant by probable vacancies. Moreover, Rule 7(2)
deals with tenure of the approved list while the determination of
the probable number of vacancies falls within the ambit of Rule
7(1). Hence, in determining the probable number of vacancies F
likely to be filled up, the particular High Court has to take into
account: (i) The existing number of vacancies; (ii) Anticipated
vacancies during the year arising due to retirements and other
exigencies of service including promotion, death and resignation;
and (iii) Some candidates are to be included in the wait-list. The
ambit of the probable number of vacancies in Rule 7(1) must be G
based on this assessment. In fact, this was exactly what was done
by the appellant. [Para 49][334-G-H; 335-A-C]

H
294 SUPREME COURT REPORTS [2021] 1 S.C.R.

A 4.1. There are significant problems in accepting the line of
interpretation which found acceptance by the High Court. [Para
50][355-E]
4.2. Firstly, this line of interpretation requires the appointing
authority to take into account vacancies which have arisen in the
B subsequent recruitment year 2020 in making appointments in
pursuance of the selection for recruitment year 2019. This, as a
matter of first principle, is impermissible. The determination of
probable vacancies in terms of Rule 7(1) is a determination which
is based on the vacancies which are projected during the course
C of that recruitment year, in this case 2019. This exercise cannot
cover, consistent with the mandate of Art 14 and Art 16, future
vacancies of a subsequent year of selection. Nor does Rule 7(1)
bring vacancies of a future year within the computation of probable
vacancies. [Para 51][335-E-G]

D 4.3. Secondly, adopting such interpretation would lead to
serious anomalies, as consequently, posts which have to be
allocated for recruitment against the existing and anticipated
vacancies for 2020 would have to be reduced by allocating them
to recruitment year 2019. This would require the appellant to
progressively remove from the ambit of the vacancies which are
E notified for the subsequent recruitment year, the vacancies which
are allocated to the previous year on the basis of a supposed
interpretation of Rule 7(2). This would clearly be impermissible
and bring uncertainty to the recruitment for subsequent years. It
will cause serious prejudice to candidates who qualify in terms of
F eligibility during the recruitment process of 2020 by reducing
the number of probable vacancies and adding them to the previous
recruitment cycle. [Para 52][335-H; 336-C-D]
4.4 There is a third anomaly which arises from such an
interpretation. If Rule 7(2) were to be given overriding importance
G without reading it in juxtaposition with the determination of the
probable number of vacancies under Rule 7(1), the issue is until
what period of time would vacancies arising after the date of
approval by the Governor have to be factored into account. The

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HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 295

plain consequence of the decision of the High Court would be A
that vacancies which have arisen during 2020 would be allocated
to 2019. This could only be done if the vacancies for 2020
were anticipated to arise during 2019, which is not the case.
[Para 53][336-E-F; 337-D-E]
4.5. The fourth difficulty in accepting the line of approach of B
the High Court rests on constitutional principles. It is a settled
principle of service jurisprudence that when vacancies are notified
for conducting a selection for appointments to public posts, the
number of appointments cannot exceed the vacancies which are
notified. ‘Probable number of vacancies’ is based on computing C
the existing vacancies and the vacancies anticipated to occur
during the year. It also accounts for the possibility of inclusion of
some of the candidates that are in the wait-list. However, the
expression ‘probable’ cannot be interpreted as a vague
assessment of vacancies that isn’t founded in reason and can be
altered without a statutorily prescribed cause. To allow the D
concept of probable number of vacancies in Rule 7(1) to trench
upon future vacancies which will arise in a succeeding year would
lead to a serious constitutional infraction. Candidates who become
eligible for applying for recruitment during a succeeding year of
recruitment would have a real constitutional grievance that E
vacancies which have arisen during a subsequent year during
which they have become eligible have been allocated to an earlier
recruitment year. If the directions of the High Court are followed,
this would seriously affect the fairness of the process which has
been followed by glossing over the fact that vacancies which have
arisen during 2020 will be allocated for candidates in the select F
list for the year 2019. Such a course of action would constitute a
serious infraction of Articles 14 and 16 and must be avoided. A
harmonious interpretation of Rules 7(1) and (2) must be adopted
that is consistent with the Article 142 directions in Malik Mazhar
Sultan (3) to bring the rules in accord with the governing principles G
of constitutional jurisprudence in matters of public employment.
[Para 54][337-E; 338-B, E-G; 339-A-C]
4.6. Fifthly, there is another serious aspect which arises
from the judgment of the High Court. The solution suggested by
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296 SUPREME COURT REPORTS [2021] 1 S.C.R.

A the High Court is that candidates may be selected and sent for
training even against vacancies which have not arisen, in
anticipation of vacancies arising in future. The High Court
observed that when appointments were made in June 2020, they
could only be regularly made to vacancies that actually arose until
that date. The High Court took notice of the fact that on its
B
administrative side, appointment of fresh recruits to vacancies
which would arise in the ensuing year would put the training
process into jeopardy. However, it suggested that in consultation
with the government, a procedure could be devised by which
training could be commenced for candidates against vacancies
C which have still not arisen and which would arise in the future.
The High Court even suggested that the trainees appointed
against possible future vacancies could be paid a stipend. The
solution which has been suggested by the High Court is plainly
unacceptable. Persons are sent on training on being appointed
to the judicial service and there cannot be two categories of
D
trainees, one of whom receives a stipend since the vacancies for
which they have been selected are yet to arise. Moreover, there
will be a serious discontent if not all the candidates who are sent
on training in expectation of future vacancies can be
accommodated in service. We have emphasized the above aspect,
E for the simple reason that the High Court was cognizant of the
serious problems which would result in the administration if its
decisions were to hold the field. The suggestion by the High Court
that the administration must send on training, candidates for whom
there are no vacancies in the service is contrary to law. In the
event that some of the candidates who are sent on training cannot
F
be absorbed at a future date for want of vacancies, it would lead
to a serious dissatisfaction and be unfair to the candidates who
were sent for training. This would also cause a burden on the
exchequer requiring it to pay a stipend to persons who are yet to
be recruited to the judicial service, there being no present
G vacancies to accommodate them. [Para 55][339-C; 340-D-H;
341-A-B]
5. The respondents have no vested right to appointment
for the 2019 selections. They cannot claim any right, or even
equity, on the ground that the selection for the subsequent year
H may be delayed. Vacancies for 2020 must be allocated to
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 297

candidates who are duly selected in pursuance of the recruitment A
process for 2020. Candidates who have ranked lower in the 2019
selection and were unable to obtain appointments cannot
appropriate the vacancies of a subsequent year to themselves.
To allow such a claim would be an egregious legal and
constitutional error. [Para 58][343-A-C]
B
Malik Mazhar Sultan (3) v. Uttar Pradesh Public
Service Commission (2008) 17 SCC 703; Rakhi Ray v.
High Court of Delhi (2010) 2 SCC 637 : [2010] 2
SCR 239; Prem Singh & Ors v. Haryana State Electricity
Board & Ors (1996) 4 SCC 319 : [1996] 2 Suppl. C
SCR 401; Bedanga Talukdar v. Saifudaullah Khan &
Ors (2011) 12 SCC 85 : [2011] 11 SCR 635; Hirandra
Kumar v. High Court of Judicature at Allahabad, 2019
SCC Online SC 254; All India Judges’ Association v.
Union of India (2002) 4 SCC 247 : [2002] 2 SCR 712;
Subhash Chander Sharma v. State of Haryana (1984) D
1 SLR 165 (P&H); Ashok Kumar Yadav v. State of
Haryana (1985) 5 SCC 417 : [1985] Supp (1) SCR
657; A V Bhogeshwarudu v. A.P. Public Service
Commission JT (1989) 4 SC 130 : (1990) 1 LLN 6 :
(1989) 59 FLR 749 (SC); Hoshiar Singh v. State of E
Haryana: 1993 Supp (4) SCC 377 : 1994 SCC (L&S)
249 : (1994) 26 ATC 325; State of Bihar v. Secretariat
Asstt. Successful Examinees’ Union 1986 (1994) 1 SCC
126 : [1993] 3 Suppl. SCR 134; Gujarat State Dy.
Executive Engineers’ Assn. v. State of Gujarat: 1994
Supp (2) SCC 591 : [1994] 3 SCR 983; Anurag Kumar F
Singh v. State of Uttarakhand (2016) 9 SCC 426; Rahul
Dutta v. State of Bihar (2019) 5 SCC 158 : [2019]
3 SCR 1060; Virender S Hooda v. State of Haryana
(1999) 3 SCC 696 and Virender Singh Hooda v. State
of Haryana [2004] 5 Suppl. SCR 720 – referred to. G
Black’s Law Dictionary – referred to.
Case Law Reference
(2008) 17 SCC 703 referred to Para 5
H
298 SUPREME COURT REPORTS [2021] 1 S.C.R.

A [2010] 2 SCR 239 referred to Para 10
[1996] 2 Suppl. SCR 401 referred to Para 10
[2011] 11 SCR 635 referred to Para 10
(1999) 3 SCC 696 referred to Para 12
B
[2002] 2 SCR 712 referred to Para 16
[1985] Supp (1) SCR 657 referred to Para 39
1993 Supp (4) SCC 377 referred to Para 39
C
[1993] 3 Suppl.SCR 134 referred to Para 39
[1994] 3 SCR 983 referred to Para 39
(2016) 9 SCC 426 referred to Para 42

D [2019] 3 SCR 1060 referred to Para 43
[2004] 5 Suppl. SCR 720 referred to Para 56
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3974-
3975 Of 2020.
E From the Judgment and Order dated 26.08.2020 of the High Court
of Kerala at Ernakulam in W.A. No. 994 of 2020 & W.A. No. 998 of
2020.
V. Giri, Paramjit Singh Patwalia, V. Chitambaresh, Sr. Advs., T.
G. Narayanan Nair, Ms. Ankita Gupta, Karthik S.D., John Mathew, Ms.
F
Bina Madhavan, M/s. Lawyer S Knit & Co., Mohammed Sadique T.A.,
Ms. Anzu. K. Varkey, Govind Venugopal, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
G
A. Background
B. Submissions of the parties
C. Kerala Rules, 1991
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 299
[DR. DHANANJAYA Y CHANDRACHUD, J.]

D. Malik Mazhar Sultan (3) A
E. Committee of Judges: Kerala High Court
F. Harmonizing Rule 7(2) of the Kerala Rules, 1991 with Malik
Mazhar Sultan (3)
G. Harmonizing Rule 7(2) of the Kerala Rules, 1991 with B
Articles 14 and 16 of the Indian Constitution
H. Factual Analysis and Conclusion
A. Background
C
1. A judgment of a Division Bench of the High Court of Kerala
dated 26 August 20201 forms the subject of the appeal. The High Court
has affirmed a judgment of its Single Judge2 by holding that appointments
to the post of Munsiff-Magistrate in the judicial service of the state can
be beyond the number of probable number of vacancies advertised in
the notification inviting applications. The High Court held, on a literal D
reading of Rule 7(2) of the Kerala Judicial Service Rules, 19913 (as
amended in 2019), that vacancies which arise within a year of the approval
of the select list by the Governor should be filled up from amongst
candidates on the list even though this exceeds the number of probable
vacancies which were notified, unless a fresh list is notified within a E
year. The consequence of the decision is that vacancies attributable to
the next selection year – 2020 – have to be filled up from the select list
drawn for the previous selection year, 2019.
2. A notification was issued by the High Court4 on 1 February
2019 inviting applications for appointment to the posts of Munsiff- F
Magistrate in the Kerala Judicial Service, against regular vacancies and
against a carry-forward called ‘No Candidates Available (NCA)’. Thirty-
seven “probable” vacancies were notified including one vacancy reserved
for persons with disabilities, for appointment by direct recruitment and
recruitment by transfer. Eight vacancies were notified under the NCA
G
category. The notification is reproduced below:

1
Writ Appeal 994/2020 and 998/2020 (High Court of Kerala)
2
Writ Petition (Civil) 10007/2020 and 10361/2020 (High Court of Kerala)
3
“Kerala Rules 1991”
4
“Appellant” H
300 SUPREME COURT REPORTS [2021] 1 S.C.R.

A

B

C

D

E

F

G

H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 301
[DR. DHANANJAYA Y CHANDRACHUD, J.]

3. A preliminary examination was held on 26 March 2019 and the A
result was declared on 19 July 2019. The main examination was held on
31 August 2019 and 1 September 2019 and the result was declared on
21 December 2019. Interviews were conducted between 8 and 25
January 2020 and the merit list was published on 20 February 2020.
After the competitive examination, a list of candidates qualified for
B
selection was prepared and was published on 20 February 2020. The
merit list prepared by the appellant was approved by the Governor and
was notified by the Government of Kerala through a gazette notification
dated 07 May 2020. By way of this notification, 32 candidates were
appointed as Munsiff-Magistrate trainees by direct recruitment for the
year 2019 against regular vacancies and 5 candidates were subsequently C
appointed against NCA. All the selected candidates are undergoing
training.
4. Two petitions were filed under Article 226 of the Constitution
before the High Court, Writ Petition No. 10007 of 2020 and Writ Petition
No. 10361 of 2020 in May 2020, claiming that as on 07 May 2020 and D
thereafter, several vacancies had arisen for the post of Munsiff-
Magistrate, which were not specified in the notification inviting
applications. The respondents, who were the original petitioners, claimed
that in accordance with Rule 7(2) as amended with effect from 14 January
2019, all vacancies which arise for a period of one year after the approval
E
of the merit list by the Governor, are to be filled from the approved merit
list. The submission was that appointments of Munsiff-Magistrates must
not be limited to thirty-two vacancies and must take into account all
other vacancies that have arisen or which may arise till 6 May 2021, that
is, within one year from the date on which the merit list dated 7 May
2020 was notified. F
5. Opposing these submissions, the High Court of Kerala, the
appellant herein, contended that appointment to vacancies in the judicial
service of the state is regulated by the Kerala Rules, 1991 and by the
directions and timelines fixed by this Court under Article 142 of the
Constitution in Malik Mazhar Sultan (3) v. Uttar Pradesh Public G
Service Commission5 (“Malik Mazhar Sultan (3)”). Relying on
Malik Mazhar Sultan (3), the appellant argued that the notification
inviting applications is issued for only those vacancies that are available
till 31 December of the year in which the notification is issued and only
5
(2008) 17 SCC 703
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302 SUPREME COURT REPORTS [2021] 1 S.C.R.

A these notified vacancies can be filled up by the recruitment process of a
given year.
6. During the pendency of the petitions, a fresh notification dated
30 June 2020 was issued by the appellant inviting applications to 47
probable regular posts of Munsiff-Magistrate. A corrigendum dated 30
B July 2020 was issued deleting the term ‘probable’ from the number of
regular vacancies notified.
7. The Single Judge of the High Court, by a judgment and order
dated 9 July 2020, held that Rule 7(2) provides that vacancies existing
and arising within one year from the date of approval of the merit list by
C the Governor are to be filled up from the select list, unless a fresh list
comes into force before the lapse of a year. The Single Judge held that
since a special rule governs the selection and appointment of candidates
to a post, the appellant- as the High Court of Kerala on its administrative
side, could not deny appointment on the ground that the recruitment
would not fall within the timelines prescribed in Malik Mazhar Sultan
D (3). Denial of appointment to the additional vacancies would, in the view
of the Single Judge, violate Articles 14 and 16 of the Constitution. The
Single Judge further held that in case the appointments in accordance
with the Kerala Rules, 1991 are not in consonance with the directions of
this Court, the appellant would have to seek permission or furnish an
E explanation before this Court. Rejecting the contention of the appellant
that no vacancy in excess of the thirty-seven specified in the notification
can be filled up, the Single Judge held that only a probable number of
vacancies was specified in the notification. The writ petitions were allowed
and the appellant was directed to forward an additional list of candidates
from the merit list dated 20 February 2020 to the Governor for approval
F and appointment to the posts of Munsiff-Magistrate.
8. This judgment and order of the Single Judge was affirmed by
the Division Bench in appeal. The Division Bench held that amended
Rule 7(2) provides that the approved list is valid for the notified vacancies
and the vacancies arising within one year from the date of approval by
G the Governor or till a fresh list comes into force. Consequently, the merit
list approved on 7 May 2020 would be valid for vacancies till 6 May
2021 or till a fresh list comes into force, whichever is earlier. The Division
Bench further held that the operation of the Kerala Rules, 1991 for
selection and appointment was not in contradiction with the guidelines
H laid down in Malik Mazhar Sultan (3) as this Court had noticed that
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 303
[DR. DHANANJAYA Y CHANDRACHUD, J.]

selections were to be made according to the existing judicial service A
rules in the States/Union Territories. According to the Division Bench,
the intent of Malik Mazhar Sultan (3) was not to interfere with statutory
rules, but only to lay down guidelines for expeditious filling up of judicial
vacancies. The Division Bench held that the term ‘probable’ vacancies
in the notification inviting applications indicated that there was a possibility
B
of variance between the actual and advertised vacancies and the
advertised vacancies could be reduced or enhanced. Thus, vacancies in
excess of those notified could be filled up.
9. Two issue fall for determination in this appeal:
(i) Whether Rule 7 of the Kerala Rules, 1991 is contrary to C
the directions of this Court in Malik Mazhar Sultan (3);
and
(ii) Whether the respondents and similarly placed candidates
who find place in the merit list approved by the Governor
can be appointed to vacancies arising within one year from D
the date of approval of the merit list, in excess of those
specified in the notification.
B. Submissions of the parties
10. Mr V Giri, learned senior counsel appearing on behalf of the
appellant, has made the following submissions: E

i Rule 7(2) of the Kerala Rules, 1991 as amended in 2019, if
interpreted to fill up all vacancies arising within one year of
its approval, would be inconsistent with the directions of
this Court in Malik Mazhar Sultan (3);
F
ii The respondents cannot be appointed to vacancies arising
within one year from the date of approval of the merit list
by the Governor, in excess of the vacancies notified;
iii In Malik Mazhar Sultan (3), this Court directed that after
completion of the recruitment process, appointment letters
G
for vacant posts are to be issued on 1December of every
recruitment year and the last date of joining shall be 2January
of the following year. Thus, for every recruitment year the
vacancies to be considered are as on 1December to enable
the appointees to join on 2 January of the following year;
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304 SUPREME COURT REPORTS [2021] 1 S.C.R.

A iv The direction contained in the order of this Court dated 4
January 2007 in Malik Mazhar Sultan (3), which provided
that 10% of the posts shall be notified for vacancies that
may arise due to elevation, death or otherwise, was
superseded by this Court in a subsequent order dated 24
March 2009. In the subsequent order, this Court provided
B
that the High Courts shall notify the existing number of
vacancies and anticipated vacancies for the next one year.
Thus, the vacancies notified for any selection year are the
vacancies existing on 15 January of that year plus anticipated
vacancies for that year and a few vacancies which may
C arise due to death, resignation, promotion or otherwise;
v Recruitment commenced for the year 2020 and included
the vacancies existing at the beginning of the year and
anticipated vacancies till 31 December 2020;
vi The term ‘probable’ denotes addition or deduction to be
D made on account of vacancies arising due to death,
retirement, appointment of an incumbent to a superior post,
among other reasons, for which the additional category has
been provided in Malik Mazhar Sultan (3);
vii A literal interpretation of Rule 7(2) would lead to a violation
E of Articles 14 and 16 as appointments would be made in
excess of the vacancies notified which is contrary to the
directions of this Court in Rakhi Ray v. High Court of
Delhi [(2010) 2 SCC 637]; Prem Singh & Ors v.
Haryana State Electricity Board & Ors[(1996) 4 SCC
F 319]; and Bedanga Talukdar v. Saifudaullah Khan &
Ors [(2011) 12 SCC 85]; and
viii A harmonious interpretation of the Kerala Rules, 1991 along
with the directions of this Court in Malik Mazhar Sultan
(3) would imply that vacancies arising in a recruitment year
G should be filled up by the merit list in that year only and
yearly selection must be conducted.
11. Opposing these submissions, Mr P S Patwalia, and Mr V
Chitambaresh, learned Senior Counsel and Ms Bina Madhavan, learned
Counsel appearing on behalf of the respondents contended that:
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 305
[DR. DHANANJAYA Y CHANDRACHUD, J.]

i About fifty vacancies subsist after the appointments were A
issued on 7 May 2020 and forty-seven vacancies are
advertised in the notification dated 30 June 2020 for
appointments for the year 2020;
ii The term ‘probable’ has been consciously deleted from the
notification for 2020, by the corrigendum issued on 30 July B
2020 as the term ‘probable’ implies that the number of
vacancies is projected and not definite;
iii Selection and appointment to judicial posts has to be
conducted strictly in adherence to existing judicial service
rules as held in Malik Mazhar Sultan; Rakhi Ray; and in C
Hirandra Kumar v. High Court of Judicature at
Allahabad (2019 SCC Online SC 254);
iv The amendment to Rule 7(2) of the Kerala Rules, 1991
was made with specific reference to Malik Mazhar Sultan
(3) and has been discussed in the impugned judgment; D
v The amendment to Rule 7(2) mandates that the merit list
approved by the Governor is to remain in force for a period
of one year during which all vacancies which arise are to
be filled up from the merit list, or until a new list comes into
force, whichever is earlier. This amendment is a significant E
departure from the previous rule which only mandated that
the list remains in force for three years or until a fresh list is
prepared and did not contemplate filling up of vacancies
arising after the approved list;
vi Appointments from a subsisting merit list can be made F
against vacancies arising after the merit list is notified, as
held in Virender S
Hooda v. State of Haryana6;
vii The Kerala Rules, 1991 have not been challenged as
violative of Articles 14 and 16 of the Constitution and the G
High Court cannot contend that the its own rules violate
Articles 14 and 16;

6
(1999) 3 SCC 696
H
306 SUPREME COURT REPORTS [2021] 1 S.C.R.

A viii There has been an inordinate delay of over two years in
filling up the judicial vacancies. In case the vacancies are
not filled up by using the merit list for Selection Year 2019,
they will remain vacant till early 2023; and
ix A harmonious interpretation of Rule 7(2) of the Kerala
B Rules, 1991 and the dictum in Malik Mazhar Sultan (3)
would indicate that all vacancies existing on the date of
appointment must be filled up.
12. We will now consider the rival submissions.
C. Kerala Rules, 1991
C
13. The Kerala Judicial Service Rules 19917came into force with
effect from 1 January 1992. The Kerala Rules 1991 have been issued
under the authority of the Governor of Kerala in exercise of powers
conferred by Articles 234 and 235 of the Constitution and the provisions
of Section 2(1) of the Kerala Public Services Act 1968. The Notification
D by which they were issued, SRO No. 1621/91, terms them as “Special
Rules in respect of the Kerala Judicial Service”. Rule 3 specifies that
the service shall consist of two categories:
“Category (I) : Subordinate Judges I Chief Judicial Magistrates
Category (2) : Munsiff-Magistrate.”
E
14. The Governor of the State is the appointing authority for
category (2). Rule 5 provides that appointment to the post of Munsiff
Magistrate shall be made by direct recruitment and by transfer in the
manner provided in sub-Rule (3). Originally, Rule 7 in its unamended
form was cast in the following terms:
F
“7. Preparation of lists of approved candidates and reservation of
appointments:
(1) The High Court of Kerala shall, from time to time, hold
examinations, written and oral, after notifying the probable number
G of vacancies likely to be filled up and prepare a list of candidates
considered suitable for appointment to category (2). The list shall
be prepared after following such procedure as the High Court
deems fit and by following the rules relating to reservation of

7
H “the Kerala Rules 1991”
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 307
[DR. DHANANJAYA Y CHANDRACHUD, J.]

appointments contained in rules 14 to 17 of Part II of the Kerala A
State and Subordinate Services Rules, 1958.
(2) The list consisting of not more than double the number of
probable vacancies notified shall be forwarded for the approval
of the Governor. The list approved by the Governor shall come
into force from the date of the approval and shall remain in force B
for a period of three years or until a fresh approved list is prepared,
whichever is earlier.”
15. Sub-rule (1) of Rule 7 required the Appellant to hold
examinations “after notifying the probable number of vacancies likely to
be filled up”. Under Sub-rule (2), a list consisting of not more than double C
the number of probable vacancies notified had to be forwarded for the
approval of the Governor. The list approved by the Governor was to
remain in force for a period of three years or until a fresh approved list
is prepared, whichever is earlier.
16. On 19 January 2019, the Kerala Judicial Service (Amendment) D
Rules 2018 were notified in the Kerala Gazette. As a result of the
amendment, the last sentence of Rule 7(1) was substituted in the following
terms
“5. The last sentence in Rule 7(1) be substituted by the following:-
“The selection shall be on the basis of competitive examination at E
two successive stages. At the first stage, a Preliminary screening
examination is to be conducted to find out the true aspirants for
the posts and to make the Main examination more competitive. In
the Preliminary examination, the ratio of 1:10 of the notified
vacancies to the successful candidates be maintained. At the F
second stage, there shall be a Main examination consisting of a
written examination and a viva voce. The main (written)
examination shall have four papers with 100 marks each at a total
of 400 marks, based on the syllabus prescribed by the High Court
from time to time. The number of candidates for the viva voce
shall not ordinarily exceed three times of the notified vacancies. G
The maximum mark for viva voce shall be 50. The cut off mark in
the viva voce is 40% for the general and Other Backward Class
candidates and 35% for the SC/ST candidates. The merit list shall
be prepared on the basis of aggregate marks secured by the
successful candidates in the Main (written) examination and viva
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308 SUPREME COURT REPORTS [2021] 1 S.C.R.

A voce. For the preparation of the merit list and select list, rules 14
to 17 of Part II of the Kerala State and Subordinate Services
Rules 1958 shall be followed.”
Similarly Rule 7 (2) was substituted by the following provision:
“6. Rule 7(2) of the existing Rules be substituted by the following:-
B
“(2) The merit list prepared by the High Court shall be forwarded
for the approval of the Governor. The list approved by the Governor
shall come into force from the date of the approval and shall be
valid till the notified vacancies and the vacancies that may arise
within one year from the date of approval of the list, are filled up
C or a fresh list comes into force, whichever is earlier.”
17. As we have seen above, under the unamended Rule 7(2),
there was a stipulation that a list approved by the Governor will remain
in force for a period of three years or until a fresh list is prepared (the
three years stipulation had earlier been substituted by SRO 660/2006).
D As a result of the amendment which came into effect in 2019, it has
been stipulated that the list approved by the Governor shall be valid till
the notified vacancies and the vacancies that may arise within one year
from the date of the approval of the list are filled up or a fresh list comes
into force, whichever is earlier.
E D. Malik Mazhar Sultan (3)
18. The existence of unfilled vacancies in posts falling within the
district judiciary across the country has been considered by this Court in
Malik Mazhar Sultan (3) v. U P Public Service Commission
(“Malik Mazhar Sultan (3)”)8. In the judgment, which was delivered
F on 4 January 2007, comprehensive directions were issued in regard to
the mode of determining vacancies and the manner in which the selection
would have to be conducted every year. The judgment of this Court
envisages an annual exercise for selection to posts in the judicial service
of each state. While issuing directions, the two judge Bench consisting
of Chief Justice YK Sabharwal and Justice CK Thakker noted that nearly
G
five years had elapsed since the decision of this Court in All India
Judges’ Association v. Union of India 9 (“All India Judges’
Association”). In the earlier decision, the Court had envisaged that

8
(2008) 17 SCC 703
9
H (2002) 4 SCC 247
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 309
[DR. DHANANJAYA Y CHANDRACHUD, J.]

existing vacancies at all levels in the district judiciary should be filled, if A
possible, by 31 March 2003. Despite this aspiration, the backlog of judicial
vacancies remained unfilled. The problem, as the Court perceived it,
was that:
“1. It was about five years back that this Court directed that
existing vacancies in the subordinate courts, at all levels, should B
be filled, if possible, latest by 31-3-2003, in all the States. This
direction is contained in All India Judges Assn. (III) v. Union of
India [(2002) 4 SCC 247: 2002 SCC (L&S) 508]. It has been
noticed that an independent and efficient judicial system is one of
the basic structure of our Constitution. If sufficient number of
Judges are not appointed, justice would not be available to the C
people thereby undermining the basic structure. The judicial system
has been facing the problem arising out of delay in dispensation of
justice for which one of the major causes is insufficient number
of Judges when compared to either the large number of cases
pending or in relation to the average Judge-population ratio going D
by the number of Judges available in various other democracies
in the world [Ed.: See also Beating the Backlog: Less Talk, More
Actions by Dr. A.M. Singhvi, (2007) 2 SCC J-9]. In this light, it
becomes all the more necessary to take all possible steps to ensure
that vacancies in the courts are timely filled.”
E
While issuing these directions and the time schedule which must
be adhered to in making judicial appointments for filling up vacancies,
the Court dealt with the submission that its directions would impinge on
the role and functions of the Public Service Commissions which were
tasked with judicial appointments in states. Dealing with the submission,
the court observed that: F

“5… it is necessary to note that selections are required to be
conducted by the authorities concerned as per the existing Judicial
Service Rules in the respective States/Union Territories.”
19. This Court observed that progressively, a consensus would G
have to be arrived at so that the selection process for appointments to
the district judiciary would be conducted by the High Courts or by the
Public Service Commission under the control and supervision of the High
Courts. The Court issued detailed directions specifying timelines for
appointments of District Judges; Civil Judges (Senior Division) and Civil
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310 SUPREME COURT REPORTS [2021] 1 S.C.R.

A Judges (Junior Division). For appointment to the post of Civil Judge (Junior
Division) by direct recruitment, the following time schedule was stipulated
in the judgment of this Court:
“7…
D. For appointment to the posts of Civil Judge (Junior
B Division) by direct recruitment

C

D

E

F

G

”
20. All Chief Justices of the High Courts were directed to constitute
committees to oversee the process of selection and appointment of judicial
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 311
[DR. DHANANJAYA Y CHANDRACHUD, J.]

officers and to set up a special cell within the High Court to look after A
the process. The judgment of this Court envisages that appointment letters
would be issued by the State Governments within a month of the receipt
of the recommendations from the High Courts/State Public Service
Commissions. Paragraph 15 of the judgment contains a further direction
that:
B
“15….ten per cent of unforeseen vacancies would be in respect
of sanctioned posts and not vacancies occurring in a particular
year.”
21. While the Court granted liberty to the High Courts and to the
Governments of the States or, as the case may be, Union Territories to C
apply for a variation of the time schedule in the event of difficulties
arising due to peculiar geographical and climatic conditions and other
relevant considerations, the time schedule which was indicated in the
judgment was directed to “be adhered to and appointments made
accordingly” until it was varied.
D
22. In the State of Kerala, certain proceedings took place in relation
to the selection and appointment of Munsiff Magistrates from the select
list which was prepared in 2013. The notification for 2013 for selection
of Munsiff Magistrates was published after taking into account additional
posts of 30 Gram Nyaylayas and 27 Special Magistrate Courts. Pursuant
to the notification, 66 candidates were selected. For selection in 2013, E
the appellant had notified 74 probable vacancies for general recruitment
and 7 for NCA. In calculating the 74 vacancies, the appellant took into
account the establishment of the above Gram Nyaylayas and Munsiff
Magistrate’ Courts. A select list of 66 candidates was approved by the
Governor and on 31 October 2014 and 1 November 2014, all the 66 F
candidates were appointed as Munsiff Magistrate trainees. It so happened
that after the 74 vacancies were notified, 30 Gram Nyaylayas were not
established as anticipated, as a result of which a reduction of 30
anticipated vacancies occurred in the total number of notified vacancies.
Apparently, 13 NCA slots were also required to be kept vacant.
G
23. The appellant moved this Court in IA 141/2015 for exempting
it for conducting the selection for 2014 and 2015 and for permission to
fill up the vacancies of 2015 from the then existing 66 candidates within
the 2013 selection. The IA came up before this Court together with
reports filed by various High Courts on compliance with the Malik
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312 SUPREME COURT REPORTS [2021] 1 S.C.R.

A Mazhar Sultan (3) directions. By an order dated 27 October 2015, the
following order was passed on the IA:
“I.A. No. 141 of 2015
After hearing learned Amicus Curiae and learned counsel for the
High Court of Kerala, we are of the firm view that the prayer in
B the application cannot be granted.”
Accordingly, I.A. No. 141 of 2015 is dismissed.”
24. The appellant was directed to file an “appropriate status report/
affidavit before this Court on or before 20 November 2015”. The plea
C of the appellant for exemption from conducting the annual selection
process, in light of the excess candidates in the previous years, was
firmly rejected.
25. The significance of these events for the controversy in the
present case lies in appreciating the submission of the appellant that the
D requirement of an annual selection process and adherence to the timelines
specified has been considered to be sacrosanct by this Court. It was on
this basis that the application filed by the High Court for exempting it
from carrying out a selection for 2014-15 was rejected.
26. The stand out feature which emerges from the judgment in
Malik Mazhar Sultan (3) is that the object and purpose of this Court in
E
issuing the directions was to ensure that unfilled vacancies which continue
to be the bane of the judicial system across the country would be filled
up by adhering to fixed time-lines and by adopting an annual process for
selection to judicial posts. It was with this object that detailed timelines
were spelt out in the decision. Punctilious compliance was sought, save
F and except where for exceptional reasons, an extension was granted by
this Court. Since the pronouncement of that decision, this Court has
consistently monitored compliance across the country by all the High
Courts. Faced with an unfavorable judge to population ratio, the effort
of this Court has been to ensure that at least the available posts in the
district judiciary are filled up.
G
27. Another facet which needs to be mentioned at this stage is
that in the decision which was rendered on 4 January 2007 in Malik
Mazhar Sultan (3), this Court had directed that the number of vacancies
to be notified by the High Court for the annual selection would be
calculated by including:
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 313
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(i) Existing vacancies; A
(ii) Future vacancies that may arise within one year due to
retirement;
(iii) Future vacancies which may arise due to promotion, death
or otherwise “say 10 per cent of the number of posts”.
B
Existing vacancies are known. Vacancies arising due to retirement
are also known, because the date of retirement is fixed by the date of
birth, coupled with the age of retirement under service rules. The third
category recognizes the imponderables of service: vacancies inevitably
arise due to promotion, death or resignation and such other factors whose
precise number cannot be predicted in advance. In computing the C
probable vacancies for the next year, the number of posts which may
fall vacant due to uncertain events such as death, resignation and
promotion cannot be determined with precision. Yet they have to be
taken into account for the selection year. Hence, in the original judgment,
this Court contemplated that about 10 per cent of the number of posts D
would cover contingencies of future vacancies arising due to “promotion,
death or otherwise”. This category was dealt with in a subsequent
decision10 which was rendered on 24 March 2009 by a three judge Bench
presided over by the learned Chief Justice KG Balakrishnan (as he was
then). The precise reason for modifying the 10 per cent stipulation was
explained in the order of this Court E

“2. It has been pointed out by the counsel appearing for the various
High Courts that 10 per cent of the sanctioned posts are notified
in some States. A large number of posts are to be notified whereas
there was corresponding number of vacancies to be filled if the
candidates are selected in the select list. There may be an F
expectation for such candidates to get appointment and this
creates unwanted litigation by the candidates and it is
prayed that the existing vacancies alone be notified along
with the anticipated vacancies that may arise in the next
one year and some candidates also be included in the wait G
list prepared by the High Courts/PSCs.”
(emphasis supplied)

10
Malik Mazhar Sultan and anr. vs. Uttar Pradesh Public Service Commission & Ors.,
(2009) 17 SCC 24 H
314 SUPREME COURT REPORTS [2021] 1 S.C.R.

A In view of the above submission of the High Courts, this Court
modified the earlier judgment in terms of the following directions:
“3. In supersession of the order passed by this Court on 4.1.2007,
this Court directs that in future the High Courts/PSCs shall
notify the existing number of vacancies plus the anticipated
B vacancies for the next one year and some candidates also
be included in the wait list. To this extent earlier order is
modified.”
(emphasis supplied)
28 Hence, in computing the vacancies to be notified annually by
C the High Court, the three factors to be borne in mind would be
(i) the existing number of vacancies;
(ii) the anticipated vacancies for the next year; and
(iii) some candidates to be included in the wait-list.
D
E. Committee of Judges: Kerala High Court
29. In the course of its judgment in the present case, the Division
Bench of the High Court has adverted to the report of its Committee of
Judges, which ultimately led to the amendment of the Kerala Rules 1991.
Prior to the amendment, Rule 7(2) envisaged that the list which was
E approved by the Governor would remain in force for a period of three
years or until a fresh approved list is prepared, whichever is earlier.
Bearing in mind the directions in Malik Mazhar Sultan (3), the
Committee of Judges opined in its report that:
“20. It is further submitted that as per rule 7(2) of the Kerala
F Judicial Service Rules, 1991, the list approved by the Governor
shall come into force from the date of the approval and shall remain
in force for a period of three years or until a fresh approved list is
prepared, whichever is earlier. As per the directions in the Malik
Mazhar Sultan Case, the select list prepared for all categories of
G officials shall be valid till the next select list is published. It is also
held therein that recruitment is to be conducted every year.
21. In view of the direction of the Hon’ble Supreme Court,
the existing provision regarding the validity period of the
merit list contained in rule 7 (2) is to be modified to the
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 315
[DR. DHANANJAYA Y CHANDRACHUD, J.]

effect that the merit list shall be valid till the next select A
list is published”.”
(emphasis supplied)
The amendment of Rule 7(2) was notified. However, while doing
so Rule 7(2) was couched in language which could mean that the existing
select list will cover the probable vacancies notified and in addition, the B
vacancies arising within a year of the approval of the Governor or till the
next select list is published, whichever is earlier.
F. Harmonizing Rule 7(2) of the Kerala Rules, 1991 with
Malik Mazhar Sultan (3)
C
30. The appellant has essentially adopted a two–pronged
submission in these proceedings. The first limb of the submissions is that
Rule 7(2) has to be read together with the directions in Malik Mazhar
Sultan (3) which in its tabulated timelines set out in the order dated 4
January 2007 provides the manner in which vacancies are to be notified
annually on 15 January. The appellant emphasises that the direction D
regarding further vacancies that may arise due to promotion, death or
otherwise, 10 per cent of the posts shall be notified was expressly
superseded by the subsequent order dated 24 March 2009 by providing
that in future the High Courts could notify the existing number of vacancies
plus anticipated vacancies and some candidates would also be included E
in the wait-list. On this basis, the appellant indicates that the breakup of
vacancies notified on 1 February 2019 comprised of
• Existing vacancies – 6 [including one PwD]
• Anticipated vacancies till 31.12.2019 - 27
F
• 10% vacancies added - 4
• Total vacancies notified - 37
According to the appellant, the merit list is to contain no more
than double the number of notified vacancies. Hence, the merit list for
2019 contains 69 persons who alone were qualified. The appellant states G
that the select list was prepared after applying the rules of reservations
contained in Rules 14 to 17 of Part-II of the Kerala State and Subordinate
Services Rules, 1958. The select list contained the names of 32 persons
for appointment against regular vacancies, after applying the rules of
reservation. The merit list did not contain persons who belonged to
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316 SUPREME COURT REPORTS [2021] 1 S.C.R.

A particular reservation categories for 5 vacancies, which is why the select
list contained 32 persons for appointment against regular vacancies and
5 persons who were appointed against NCA vacancies carried over
from the previous year. According to the appellant, Rule 7(2) as amended
with effect from 14 January 2019 must be read in accordance with
Malik Mazhar Sultan (3) which provides for an annual selection. This
B
submission of the appellant is that if Rule 7(2) is interpreted to mandatorily
operationalize the approved list until the notified vacancies and the
vacancies that may arise within one year from the date of approval of
the list are filled up, or a fresh list comes into force whichever is earlier-
would run contrary to the decision of this court in Malik Mazhar Sultan
C (3).
31. The second limb of the submissions of the appellant is that if
Rule 7(2) is read in a literal manner, it would run afoul of Articles 14 and
16 of the Constitution. Hence, the appellant submits that the rule should
not be interpreted in a manner that would render its validity open to
D serious doubt. The appellant has commenced recruitment for selection
year 2020 by a notification dated 30 June 2020. This notification includes
the vacancies existing at the beginning of 2020 plus vacancies anticipated
to arise till 31 December 2020 plus 10 per cent. What should rightly
form the subject matter of the selection year 2020 cannot, according to
the submission, be brought within the purview of selection year 2019.
E That is to say, vacancies which arise beyond 31 December 2019 (the
recruitment year in question) are actually in excess of the notified
vacancies for 2019. Vacancies which exist on the date of the notification
for the year 2020 (to be computed as on 15 January 2020) and vacancies
which arise till 31 December 2020 have to be notified for the selection
F year 2020. Such vacancies cannot be filled up from the merit list for
2019, as they have not- and could not, have been notified in 2019. This,
in the submission of the appellant, is the only interpretation which would
subscribe to the principle of equality in matters of public employment
governed by Articles 14 and 16 of the Constitution. The appellant has
adopted the position that it is under a duty to abide by a process which is
G fair, just and constitutionally compliant.
32. In the submission of the appellant, where a selection is
conducted for notified vacancies and the select list is operated beyond
the notified vacancies which arise subsequent to the selection year, the
constitutionally guaranteed right of persons who become eligible during
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 317
[DR. DHANANJAYA Y CHANDRACHUD, J.]

the interregnum to be considered for appointment to the post of Munsiff A
Magistrate would be infringed. The word ‘probable’ denotes an addition
or deduction to cover imponderables by way of the death of an incumbent,
resignation or the appointment of an incumbent to a superior category
by hierarchical promotion or otherwise. This category is provided for by
the addition of 10 per cent, as provided in Malik Mazhar Sultan (3).
B
The appellant submits that on a literal construction of Rule 7(2), the
addition of vacancies which arise during selection year 2020 for the
purpose of operating the select list of 2019 would involve it in an infraction
of Articles 14 and 16. Such a consequence, according to it, should be
obviated by adopting a harmonized reading of Rule 7(2) with the principles
which have been enunciated in Malik Mazhar Sultan (3). C
33. Opposing the two-pronged submission of the appellant, the
respondents have submitted that
(i) Rule 7(2) does not infringe the principles which were
enunciated in Malik Mazhar Sultan (3); and
D
(ii) There is no infraction of Articles 14 and 16 when the
statutory rules contemplate that the select list will be
operated for the vacancies which were notified as well as
vacancies which arise within one year of the date of the
approval of the select list by the Governor or until a fresh
list is drawn up, whichever is earlier. E

34. While analyzing the two-pronged submission of the appellant,
it must be noted at the outset that the Kerala Rules 1991 govern
appointments to the Kerala Judicial Service. The decision in Malik
Mazhar Sultan (3) recognizes that Judicial Service Rules prevail in
every State. Selections to the Judicial Service have to be conducted by F
the authorities by adhering to the rules which have been framed in the
respective States. The Kerala Rules 1991 trace their authority to both- a
constitutional and statutory power. SRO No. 1621/1991 by which the
Rules were issued makes this clear in its prefatory recital:
“S.R.O. No. 1621/91: - In exercise of the powers conferred by G
Articles 234 and 235 of the Constitution of India and sub-section
(1) of section 2 of the Kerala Public Services Act, 1968 (19 of
1968) and in supersession of all the existing rules on the subject,
the Governor of Kerala hereby makes the following Special Rules
in respect of the Kerala Judicial Service…”
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318 SUPREME COURT REPORTS [2021] 1 S.C.R.

A The decision in Malik Mazhar Sultan (3) notices that “selections
are required to be conducted by the authorities concerned as per the
existing Judicial Service Rules in the respective States/Union Territories.
Emphasizing this, the judgment of the Court specifically dealt with the
objection that the constitution of Selection Committees by the Chief
Justices of the High Court to monitor the timely appointment of judges in
B
the district judiciary at all levels would amount to an inference with the
independent functioning of the Public Service Commissions. The Court
held that the apprehension was “wholly misplaced”, “in view of what
we have already noted about the appointments to be made in accordance
with the respective Judicial Services Rules in the States” 11. The decision
C in Malik Mazhar Sultan (3) was intended to deal with a specific problem
namely, unfilled judicial vacancies in the district judiciary. The solution
that was envisaged was in terms of a regulated process governed by
specific timelines under which an annual exercise would be carried out
for filling up the posts. Article 234 of the Constitution provides that:
D “234. Appointments of persons other than district judges to the
judicial service of a State shall be made by the Governor of the
State in accordance with rules made by him in that behalf after
consultation with the State Public Service Commission and with
the High Court exercising jurisdiction in relation to such State.”
E Article 23512 vests in the High Court control over district courts
and courts subordinate thereto including the posting and promotion of,
and the grant of leave to, persons belonging to the judicial service of a
State. The High Court’s rules governing the appointment of persons
other than district judges to the judicial service of a State have
constitutional authority whose source originates in Article 234. The
F recognition in Malik Mazhar Sultan (3) of the legal position that
selections have to take place in accordance with existing Judicial Service
Rules in the States, or as the case may be, Union Territories is hence in
accordance with the mandate of Article 234.
11
(2008) 17 SCC 703, at pages 75-76, paras 5-6
G 12
“The control over district courts and courts subordinate thereto including the posting
and promotion of, and the grant of leave to, persons belonging to the judicial service of
a State and holding any post inferior to the post of district judge shall be vested in the
High Court, but nothing in this article shall be construed as taking away from any such
person any right of appeal which he may have under the law regulating the conditions
of his service or as authorising the High Court to deal with him otherwise than in
H accordance with the conditions of his service prescribed under such law.”
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 319
[DR. DHANANJAYA Y CHANDRACHUD, J.]

35. In two subsequent decisions of this Court, we find a reiteration A
of the principle imparting sanctity to the Rules governing the judicial
service in the States. The three judge Bench decision in Rakhi Ray v.
High Court of Delhi13 (“Rakhi Ray”) involved a situation where the
High Court had issued an advertisement for filling up 20 vacancies in the
cadre of District Judge of which 13 were to be drawn from the general
B
category, 3 from the Scheduled Castes and 4 from the Scheduled Tribes.
All the 13 vacancies in the general category were filled up according to
the merit list and the appellants who ranked below the selected candidates
were not appointed. Some of the unsuccessful candidates moved the
Delhi High Court with the submission that the vacancies which arose
during the pendency of the selection process could also have been filled C
up from the select list in view of the decision in Malik Mazhar Sultan
(3). This Court observed, following its earlier decisions in All India
Judges’ Association and Malik Mazhar Sultan (3) that “selection
was to be made as per the existing Rules”14 and that “appointments
have to be made giving strict adherence to the existing statutory
D
provisions”15. Dr Justice BS Chauhan, speaking for the three judge
Bench, held that appointments have to be made in view of the provisions
of the Delhi Higher Judicial Service Rules 1970 which “provide for
advertisement of the vacancies after being determined”. Moreover, “the
reservation policy is to be implemented, the number of vacancies to be
filled up has to be determined”, failing which it would not be possible to E
implement the reservation policy at all. Consequently, the Court held
that there was no question of taking into consideration the anticipated
vacancies as per the judgment in Malik Mazhar Sultan (3). Since the
anticipated vacancies have not been determined in view of the existing
statutory rules, and they could not be taken into consideration:
F
“21. The appointments had to be made in view of the provisions
of the Delhi Higher Judicial Service Rules, 1970. The said Rules
provide for advertisement of the vacancies after being determined.
The Rules further provide for implementation of reservation
policies in favour of Scheduled Castes, Scheduled Tribes and Other
Backward Classes. As the reservation policy is to be implemented, G
the number of vacancies to be filled up is to be determined,

13
(2010) 2 SCC 637
14
At page 644, para 18
15
at page 645, para 20 H
320 SUPREME COURT REPORTS [2021] 1 S.C.R.

A otherwise it would not be possible to implement the reservation
policy at all. Thus, in view of the above, the question of taking into
consideration the anticipated vacancies, as per the judgment
in Malik Mazhar Sultan (3) case [(2008) 17 SCC 703: (2007) 2
Scale 159] , which had not been determined in view of the existing
statutory rules could not arise.
B
22. In view of the above, we do not find any force in the submissions
that the High Court could have filled vacancies over and above
the vacancies advertised on 19-5-2007, as per the directions issued
by this Court in Malik Mazhar Sultan (3) case [(2008) 17 SCC
703 : (2007) 2 Scale 159] .”
C
36. Rakhi Ray involved a situation where candidates who were
not successful in seeking appointment to the vacancies which were
advertised, attempted to gain appointment as District Judges by the
inclusion of additional vacancies, over and above those which were
notified. This court turned down the request, holding that such a course
D of action was not permissible, both in terms of the judicial service rules
and the mandate of Articles 14 and 16 (the latter aspect will be explored
a little later in this judgment).
37. The next decision which needs to be referred to at this stage
is Hirandra Kumar v. High Court of Judicature at Allahabad16
E (“Hirandra Kumar”). Hirandra Kumar involved a situation under
the rules governing the UP Judicial Service, where a minimum and
maximum age limit could be relaxed in the case of SC/ST candidates.
The age limit was prescribed with reference to the first day of January
of the year following the year in which the notice inviting applications is
F published. Before this Court, the submission of the appellants was that
based on the decision in Malik Mazhar Sultan (3), a candidate who
applies for recruitment to the Higher Judicial Service may be granted
age relaxation since the candidate has crossed the prescribed age limit
between the last date of recruitment and the current. Rejecting this
submission, the Court, speaking through one of us (Dr Justice DY
G Chandrachud) held:
“16. Under Rule 12, a minimum age criterion of 35 years and a
maximum age limit of 45 years is stipulated which is relaxable by
three years for Scheduled Caste and Scheduled Tribe candidates.
16
H 2019 SCC Online SC 254
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 321
[DR. DHANANJAYA Y CHANDRACHUD, J.]

The age limit is prescribed with reference to the first day of A
January of the year which follows the year in which the notice
inviting applications is published.
17. The submission which was urged on behalf of the petitioners
is based on the decision of this Court in Malik Mazhar
Sultan (supra). While formulating a time schedule for the filling B
up of vacancies both in the Higher Judicial Service and at all
other levels in the district judiciary, this Court was cognizant of
the fact that recruitment rules are in operation in all the States
and Union Territories. Bearing this in mind, this Court observed:
“5. Before we issue general directions and the time schedule C
to be adhered to for filling vacancies that may arise in
subordinate courts and District Courts, it is necessary to note
that selections are required to be conducted by the authorities
concerned as per the existing Judicial Service Rules in the
respective States/Union Territories. We may, however, note
that, progressively, the authorities concerned would consider, D
discuss and eventually may arrive at a consensus that the
selection process be conducted by the High Court itself or by
the Public Service Commission under the control and supervision
of the High Court.”
18. The directions which have been issued in Malik Mazhar E
Sultan (supra) are being monitored by this Court. The Allahabad
High Court has been submitting progressive reports which are
monitored by this Court for compliance. The purpose of the
directions in Malik Mazhar Sultan (supra) was to ensure that
vacancies in the district judiciary are not left unfilled over long F
periods of time, undermining the efficacy of the judicial system.
Equally, the Court was cognizant of the fact that each High Court
has its recruitment rules. It is in view of that background that the
general implementation of the directions which have been issued
is being continuously monitored.
G
19. The real issue is as to whether the decision in Malik Mazhar
Sultan (supra) can be construed as leading to a vested right in a
candidate who applies for recruitment to the HJS to assert that
they may be granted an age relaxation by virtue of the fact that
between the last date of recruitment and the current, the candidate
has crossed the prescribed age limit. H
322 SUPREME COURT REPORTS [2021] 1 S.C.R.

A 20. The directions in Malik Mazhar Sultan (supra) are intended
to address the issue of vacancies in the district judiciary. Those
directions do not override the prevailing rules which govern
selections to the HJS in the States and the Union Territories nor
do they create an enforceable right in any candidate for selection
or to assert a right to age relaxation in violation of the rules. So
B
long as the rules hold the field, a candidate in order to be eligible,
must fulfil the requirements of age and other conditions which are
prescribed by the Rules.”
38. In Rakhi Ray, the submission which did not find acceptance
was that anticipated vacancies should be considered over and above the
C vacancies which were notified in the advertisement for making
appointments. In Hirandra Kumar candidates who sought an age
relaxation on the ground that they had crossed the age limit after the last
recruitment met with a similar fate, with this Court holding that compliance
with the age limit prescribed in the Judicial Services Rules cannot be
D obviated. We are thus unable to subscribe to the wider submission of the
appellant that the directions in Malik Mazhar Sultan (3) will prevail
over the provisions contained in Rule 7(2). A better line of approach is to
seek an interpretation which will bring harmony between them.
G. Harmonizing Rule 7(2) of the Kerala Rules, 1991 with
E Articles 14 and 16 of the Indian Constitution
39. The second limb of the submissions urged by the appellant
now requires analysis. The appellant has asserted that reading the
provisions of Rule 7(2) in a literal context would involve, as Mr V Giri,
learned Senior Counsel submitted “a frontal assault” on the provisions
F of Articles 14 and 16 of the Constitution. In fairness to the learned Senior
Counsel, it is necessary to record that it is not the submission of the
appellant that Rule 7(2) is invalid. The submission is that it must be
interpreted in a manner that will save the rule from a challenge that it
violates the principle of equality of opportunity in matters of public
employment. Essentially, the submission is based on the fundamental
G precept that where a public authority notifies a determined number of
vacancies for recruitment, appointments to posts covered by the
notification cannot be in excess of the vacancies that are notified. The
submission is that if the select list of 2019 is operated by filling up
vacancies which arise for 2020, this will seriously erode the rights of
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 323
[DR. DHANANJAYA Y CHANDRACHUD, J.]

candidates who become eligible in 2020, since this will result in a A
corresponding reduction of vacancies for the later year.
40. In order to analyze the issue, it becomes necessary to advert
to the line of precedent through which the constitutional principle has
emerged. In Prem Singh v. Haryana State Electricity Board17, based
on the advertisement dated 2 November 1991, the Board decided to fill B
up 62 vacant posts of Junior Engineer by direct recruitment, 15 posts
were reserved for SC and ST candidates, 6 for Backward Classes and
9 for ex-servicemen. The Selection Committee selected 212 candidates
and recommended the names. The Board, considering the latest vacancy
position as on 11 February 1993, decided to fill up 147 posts. Two questions
fell for determination by this Court: C

(i) Whether it was open to the Board to prepare the list of 212
candidates and to appoint 137 out of that list when the
number of posts advertised was only 62; and
(ii) Whether the appellant was justified in quashing the selection D
of all 212 candidates and appointments of 137 persons.
After adverting to the precedent on the subject18, Justice GT
Nanavati speaking for Bench of two judges held:
“25…the selection process by way of requisition and
advertisement can be started for clear vacancies and also E
for anticipated vacancies but not for future vacancies. If
the requisition and advertisement are for a certain number
of posts only the State cannot make more appointments
than the number of posts advertised, even though it might
have prepared a select list of more candidates. The State F
can deviate from the advertisement and make appointments
on posts falling vacant thereafter in exceptional
circumstances only or in an emergent situation and that
17
(1996) 4 SCC 319
18
Subhash Chander Sharma v. State of Haryana: (1984) 1 SLR 165 (P&H); Ashok
Kumar Yadav v. State of Haryana: (1985) 5 SCC 417 : 1986 SCC (L&S) 88: 1985 Supp G
(1) SCR 657; A V Bhogeshwarudu v. A.P. Public Service Commission: JT (1989) 4 SC
130: (1990) 1 LLN 6: (1989) 59 FLR 749 (SC); Hoshiar Singh v. State of Haryana: 1993
Supp (4) SCC 377:1994 SCC (L&S) 249: (1994) 26 ATC 325; State of Bihar v. Secretariat
Asstt. Successful Examinees’ Union 1986: (1994) 1 SCC 126: 1994 SCC (L&S) 274;
Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat: 1994 Supp (2) SCC
591: 1994 SCC (L&S) 1159
H
324 SUPREME COURT REPORTS [2021] 1 S.C.R.

A too by taking a policy decision in that behalf. Even when
filling up of more posts than advertised is challenged the court
may not, while exercising its extraordinary jurisdiction, invalidate
the excess appointments and may mould the relief in such a manner
as to strike a just balance between the interest of the State and
the interest of persons seeking public employment. What relief
B
should be granted in such cases would depend upon the facts and
circumstances of each case.”
(emphasis supplied)
The Court held that since the selection process was initiated for
C 62 clear vacancies and, at that time anticipated vacancies were not taken
into account, the Board was not justified in making more than 62
appointments. But the Board could have taken into account not only the
actual vacancies but also vacancies which were likely to arise because
of “retirement etc” by the time the selection process was completed.
This Court held that it would not be equitable to invalidate all the
D appointments made on posts in excess of 62. However, appointments
which were made against future vacancies – in this case on newly created
posts, would have to be held to be invalid. While moulding the relief, this
Court observed that 13 posts had become vacant because of retirement
and 12 posts because of deaths. The vacancies which were likely to
E arise as a result of retirement could have been reasonably anticipated
and the Board had due to oversight not taken them into consideration
while a requisition was made for filling up 62 posts. As regards the posts
which fell vacant due to deaths, this Court taking what it described as a
“lenient view” did not quash the appointments made against them. Hence,
appointments made by the Board on posts beyond 87 (the original 62
F posts for which selection was advertised and the 25 additional posts
which fell vacant during selection process due to deaths and retirement)
were invalidated.
41. The decision in Rakhi Ray which is by a Bench of three
learned judges has been adverted to in a different context earlier. In that
G case, as we have noticed, the High Court had notified an advertisement
to fill up 20 vacancies in the cadre of District Judge. All the 13 vacancies
in the general category were filled up according to the merit list.
Unsuccessful candidates belonging to the general category however
asserted that additional vacancies which came up during the pendency
H of the selection process should also be filled up from the same select list.
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 325
[DR. DHANANJAYA Y CHANDRACHUD, J.]

In this context, while analyzing the constitutional requirements of Article A
14 and Article 16, Dr Justice BS Chauhan, speaking for the three judge
Bench, observed:
“7. It is a settled legal proposition that vacancies cannot be
filled up over and above the number of vacancies advertised
as “the recruitment of the candidates in excess of the B
notified vacancies is a denial and deprivation of the
constitutional right under Article 14 read with Article 16(1)
of the Constitution”, of those persons who acquired
eligibility for the post in question in accordance with the
statutory rules subsequent to the date of notification of
vacancies. Filling up the vacancies over the notified C
vacancies is neither permissible nor desirable, for the
reason, that it amounts to “improper exercise of power and
only in a rare and exceptional circumstance and in emergent
situation, such a rule can be deviated from and such a
deviation is permissible only after adopting policy decision D
based on some rationale”, otherwise the exercise would
be arbitrary. Filling up of vacancies over the notified
vacancies amounts to filling up of future vacancies and thus,
is not permissible in law. (Vide Union of India v. Ishwar Singh
Khatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21
ATC 851], Gujarat State Dy. Executive Engineers’ Assn. v. State E
of Gujarat [1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 :
(1994) 28 ATC 78], State of Bihar v. Secretariat Asstt. Successful
Examinees Union 1986 [(1994) 1 SCC 126 : 1994 SCC (L&S)
274 : (1994) 26 ATC 500 : AIR 1994 SC 736] , Prem
Singh v. Haryana SEB [(1996) 4 SCC 319 : 1996 SCC (L&S) F
934] and Ashok Kumar v. Banking Service Recruitment
Board [(1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996) 32
ATC 235 : AIR 1996 SC 976] .)”
(emphasis supplied)
In the view of the Court: G
“12. In view of above, the law can be summarised to the
effect that any appointment made beyond the number of
vacancies advertised is without jurisdiction, being violative
of Articles 14 and 16(1) of the Constitution of India, thus, a
H
326 SUPREME COURT REPORTS [2021] 1 S.C.R.

A nullity, inexecutable and unenforceable in law. In case the
vacancies notified stand filled up, the process of selection
comes to an end. Waiting list, etc. cannot be used as a
reservoir, to fill up the vacancy which comes into existence
after the issuance of notification/advertisement. The
unexhausted select list/waiting list becomes meaningless and
B
cannot be pressed in service any more.”
(emphasis supplied)
In Bedanga Talukdar v. Saifudaullah Khan19, another two judge
Bench of this Court consisting of Justice Altamas Kabir and Justice SS
C Nijjar held:
“29…In our opinion, it is too well settled to need any further
reiteration that all appointments to public office have to be made
in conformity with Article 14 of the Constitution of India. In other
words, there must be no arbitrariness resulting from any undue
D favour being shown to any candidate. Therefore, the selection
process has to be conducted strictly in accordance with the
stipulated selection procedure. Consequently, when a particular
schedule is mentioned in an advertisement, the same has to be
scrupulously maintained. There cannot be any relaxation in the
terms and conditions of the advertisement unless such a power is
E specifically reserved. Such a power could be reserved in the
relevant statutory rules. Even if power of relaxation is provided in
the rules, it must still be mentioned in the advertisement. In the
absence of such power in the rules, it could still be provided in the
advertisement. However, the power of relaxation, if exercised,
F has to be given due publicity. This would be necessary to ensure
that those candidates who become eligible due to the relaxation,
are afforded an equal opportunity to apply and compete. Relaxation
of any condition in advertisement without due publication would
be contrary to the mandate of equality contained in Articles 14
and 16 of the Constitution of India.”
G
42. The decision in Prem Singh has been followed by a Bench of
two learned judges in Anurag Kumar Singh v. State of Uttarakhand20.
In that case, the Public Service Commission advertised 38 posts of
19
(2011) 12 SCC 85
20
H (2016) 9 SCC 426
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 327
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Assistant Prosecuting Officers for a year of recruitment comprising of A
12 months commencing from first day of July of the calendar year. The
Public Service Commission however, held a selection for 74 posts, 37
additional posts having been created subsequently. The High Court set
aside the action, holding that the selection pursuant to an advertisement
can only be for clear vacancies and anticipated vacancies, but not for
B
future vacancies. Justice L Nageswara Rao, speaking for the Bench of
two learned judges of this Court, observed that the rules referred only to
the recruitment year. The Bench observed that “only the number of
vacancies that are advertised can be filled up” and if the advertisement
gives liberty to the Government to vary the number of posts this power
could not be exercised for filling up future vacancies. The Court held C
that during the pendency of the proceedings a large number of persons
would have become eligible for selection to the posts which were
advertised and their right to be considered for appointment was
guaranteed by Articles 14 and 16 of the Constitution. In the view of the
Court, there would be an infraction of such a right if the additional posts
D
are not filled up by a fresh selection. Hence the Court held that the
selection pursuant to the advertisement should be confined only to the
posts that were advertised and the additional posts which were created
after the expiry of the recruitment year would have to be filled up by the
issuance of an advertisement afresh.
43. A more recent decision in Rahul Dutta v. State of Bihar21 E
related to the post of Civil Judge (Junior Division). Rule 5(A)-(3) of the
Bihar Civil Service (Judicial Branch) (Recruitment) Rules 1955 stipulated
that:
“(3) Eligible candidates for the written examination shall be selected
on the basis of the result of the Preliminary Test, to the extent of F
10% of the total number of appeared candidates, rounded off to
the nearest hundred; and all candidates obtaining equal marks as
the last candidate’s shall also qualify for the written examination;”
The Rule provided that only 10 per cent of the total number of
candidates who appeared at the preliminary test were to be called for G
the written examination rounded off to the nearest hundred. The Court
held that this stipulation in Rule 5A was contrary to the decision in Malik
Mazhar Sultan (3). Moreover, the determination of 10 per cent of the

21
(2019) 5 SCC 158 H
328 SUPREME COURT REPORTS [2021] 1 S.C.R.

A total number of candidates who had appeared in the preliminary
examination for being called for the final written examination was
arbitrary and unreasonable, particularly, in view of the ratio of 1:10
prescribed in Malik Mazhar Sultan (3). The restriction of candidates
to 10 per cent of those who had appeared at the preliminary test was
held to curtail the competitive field unreasonably.
B
44. Having considered each of these judgments, we must notice
that all of them involve factual situations which may not be identical with
the facts of the present case. Precedent does not always rest on all
fours. We have noticed earlier that, in the present case, the High Court
while issuing its advertisement for recruitment specified 37 as a ‘probable’
C number of vacancies. The meaning which must be attributed to the
expression ‘probable’ will be considered shortly hereafter. At this stage
we must recapitulate some of the salient aspects of the decisions which
we have cited above. In Prem Singh the advertisement which was
issued by the Haryana State Electricity Board was for filling up 62 vacant
D posts of Junior Engineers while as many as 138 candidates came to be
appointed. In this backdrop this Court held that it was not open to the
Board to travelbeyond clear and anticipated vacancies. In other words,
while clear and anticipated vacancies could be taken into consideration
while issuing an advertisement for commencing the selection process,
future vacancies could not be considered. While moulding the relief, this
E Court maintained the selection for the 62 vacancies which were
advertised and 25 additional vacancies which arose during the selection
process due to promotions and deaths, but not beyond that. The decision
in Rakhi Ray involved a situation whether the High Court had advertised
20 vacancies of District Judges of which 13 were in the general category
F all of which were filled up. This Court rejected the contention of those
among the general category candidates whose position in the merit list
was below the 13 selected candidates that they were entitled to selection
on the basis of the vacancies which occurred during the pendency of the
selection process, based on Malik Mazhar Sultan (3). This Court held
that vacancies over and above those which were notified could not be
G filled up, save and except in a rare and exceptional situation. Absent an
exceptional situation an exercise to fill up vacancies over and above
those which were notified would be arbitrary. The decision in Anurag
Kumar Singh involved a requisition by the State of Uttarakhand to the
Public Service Commission for selection of 38 Assistant Prosecuting
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 329
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Officers. Despite the advertisement which was for filling up 38 posts, A
an additional 37 posts were sought to be filled up which had been created
subsequently. This was held to be impermissible, as violating the
guarantees of Articles 14 and 16. The decision in Rahul Dutta of two
judges has held that restricting the field of a written examination to 10
per cent of the candidates who appeared at the preliminary examination
B
is violative of the dictum in Malik Mazhar Sultan (3) besides being
arbitrary on the ground that it unreasonably restricts the field of
competition.
45. The constitutional principle which finds recognition in the
precedents of this Court is that the process of selection in making
appointments to public posts is subject to the guarantees of equality under C
Article 14 and of equality in matters of public employment under Article
16. The process of selection must comport with the principles of
reasonableness. Where the authority which makes a selection advertises
a specific number of posts, the process of selection cannot ordinarily
exceed the number of posts which have been advertised. While notifying D
a process for appointment, the authority may take into consideration the
actual and anticipated vacancies but not future vacancies. Anticipated
vacancies are the vacancies which can be reasonably contemplated to
arise due to the normal exigencies of service such as promotion,
resignation or death. Hence, in notifying a given number of posts for
appointment, the public authority may legitimately take into account the E
number of vacancies which exist on the date of the notification and
vacancies which can reasonably be accepted to arise in the exigencies
of the service. While the exact number of posts which may fall vacant
due to circumstances such as promotion, resignation or death may be
difficult to precisely determine the authority may make a reasonable F
assessment of the expected number of vacancies on these grounds.
However, future vacancies conceptually fall in a distinct class or category.
Future vacancies which arise during a subsequent recruitment year cannot
be treated as anticipated vacancies of a previous selection year. Vacancies
which would arise outside the fold of the recruitment year would not fall
within the ambit of anticipated vacancies. For it is only the vacancies, G
actual and anticipated which would fall within the course of the selection
or recruitment year that can be notified when the selection process is
initiated. These are constitutional principles to which statutory edicts are
subordinate.
H
330 SUPREME COURT REPORTS [2021] 1 S.C.R.

A H. Factual Analysis and Conclusion
46. In the present case, the essential aspect on which we need to
dwell is the meaning of the expression “probable”, in the context of Rule
7(1). The essence of the present case will depend upon the manner in
which the statutory rules are interpreted. That indeed is the central task
B in deciding the appeal. Intrinsic to the process of interpreting the rules is
the meaning which is to be ascribed to the expression “the probable
number of vacancies”. Rule 7(1) requires the appellant to first notify
“the probable number of vacancies” likely to be filled up and thereafter,
to hold examinations both written and oral. The selection process results
in the preparation of a list of candidates considered suitable for
C appointment as Munsiff-Magistrates. Sub-rule (2) of Rule 7 stipulates
that a list of not more than double the number of “probable vacancies
notified” has to be forwarded for the approval of the Governor. As it
stood after its amendment in 2006, the second sentence of Sub-rule (2)
provided a term of validity for the list which is approved by the Governor.
This was to be three years or until a fresh approved list is prepared,
D whichever takes place earlier. By the amendment to the Rules on 19
January 2019, the last sentence of sub-Rule (1) has been substituted and
sub- Rule (2) has been substituted in its entirety. Sub-Rule (1) prior to its
amendment did not specify the modalities for holding the competitive
examinations. Following the amendment, Rule 7(1) stipulates that the
selection is a two-stage process, on the basis of a competitive examination.
E The first stage consists of a preliminary screening examination. In the
preliminary examination, a ratio of 1:10 of the “notified vacancies to the
successful candidates is to be maintained”. The object is to ensure a
broad and competitive field of candidates who will be called for the
second stage of the main examination. The main examination consists
of a written examination and viva voce; the former consisting of four
F
papers each with 100 marks based on a prescribed syllabus. The number
of candidates for the viva voce is not to ordinarily exceed three times
“the notified vacancies”. A cut off in the viva voce is provided for general
candidates and OBC candidates (40%) and SC/ST candidates (35%). A
merit list is then prepared on the basis of aggregate marks secured by
G candidates in the main written examination and the viva voce. In preparing
the merit list and select list, Rules 14 to 17 of Part II of Kerala Subordinate
Service Rules 1958 have to be observed.
47. After its amendment in 2019, Rule 7(1) as it stands speaks in
the first instance of the notification of “the probable number of vacancies
likely to be filled up”. Rule 7(1) also refers to “notified vacancies” in
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 331
[DR. DHANANJAYA Y CHANDRACHUD, J.]

two places, the first in the context of maintaining the ratio between the A
vacancies which are notified and successful candidates while the second
refers to the proportion between the notified vacancies and the number
of candidates called for the viva voce. Now sub-Rule (2) of Rule 7
which has been substituted in its entirety as a result of the amendment
provides the tenure over which the merit list which has been approved
B
by the Governor would be valid. As we have seen, before its amendment,
sub-Rule (2) of Rule 7 provided for a tenure for the list approved by the
Governor for a period of three years or until a fresh approved list is
prepared whichever is earlier. This tenure is now modified by the
amendment brought about by the substitution of Rule 7(2). The modified
tenure for the list approved by the Governor indicates that the list will be C
valid “till the notified vacancies and vacancies that may arise within one
year from the date of approval of the list” are filled up or a fresh list
comes into force, whichever is earlier. Thus, we find that the expression
‘notified vacancies’ which has been used at two places in sub-Rule (1)
of Rule 7 finds a presence also in substituted Rule 7(2). Now what is
D
material to note is that it is Rule 7(1) which provides for the initial
notification by which a probable number of vacancies is notified. The
‘notified vacancies’ also determine the ratio of 1:10 in the preliminary
examination and the number of candidates called for the interview. Sub-
Rule (2) of Rule 7 does not have any bearing on the notification of the
vacancies under Sub-rule (1) but it provides for the period of time over E
which the list approved by the Governor is to remain valid.
48. The Kerala Rules 1991 preceded the judgment in Malik
Mazhar Sultan (3). The amendment which came into force on 19
January 2019 is evidently after the decision of this Court. The effort, as
a matter of statutory interpretation, must be to harmonize the directions F
which were issued by this Court in Malik Mazhar Sultan (3) which
are relatable to the jurisdiction of this Court under Article 142 of the
Constitution and the statutory rules. Undoubtedly, this Court has noticed
in that decision that there were rules in force in the States and the Union
Territories governing the selection to their judicial service. While issuing
directions in regard to the maintenance of timelines and for the modalities G
to be followed in an annual selection, this Court clarified that this would
not impinge upon the independence of the Public Service Commission or
the role of the High Courts in the States. In the subsequent decisions in
Rakhi Ray and Hirandra Kumar, this Court has specifically negatived
the attempts made by candidates that did not qualify in terms of the rules H
332 SUPREME COURT REPORTS [2021] 1 S.C.R.

A governing selection to the judicial service to seek appointment merely on
the basis of the observations in Malik Mazhar Sultan (3). Rakhi Ray
involved a situation where candidates who did not qualify for the notified
vacancies of District Judge in Delhi claimed appointment on the basis of
the vacancies which had arisen during the process of selection. Their
plea was turned down on the ground that once vacancies have been
B
notified, no candidate could seek appointment beyond the extent of the
vacancies which were advertised. Hirandra Kumar was a decision of
this Court where candidates for the higher judicial service examination
claimed an exemption from the age limit set out in the State Judicial
Service Rules on the ground that after the date of the last examination
C for recruitment, they had become age barred. This effort was again
negatived by the decision of this Court which held candidates down to
the requirement of complying with the rules and selection process of the
State Judicial Service. These two decisions would indicate that a candidate
who does not qualify in terms of the judicial service rules prevailing in
the State (or Union Territory) cannot seek a mandamus which is founded
D
on a breach of the rules. The observation in Rakhi Ray and Hirandra
Kumar that the decision in Malik Mazhar Sultan (3) did not override
the State Judicial Service Rules must therefore be construed in an
appropriate sense. The object and purpose of this Court in the decision
in Malik Mazhar Sultan (3) was to ensure the expeditious filling up of
E judicial vacancies in the State Judicial Services. It was in this perspective,
that the Court set down strict timelines for compliance. At the same
time, it is evident that the decision did not provide for other essential
aspects such as eligibility, modalities for conducting the examination and
the application of reservations in making appointments to state judicial
services. Hence, a significant field in regard to the process of selection
F
and appointments to the judicial services is not covered by the decision
in Malik Mazhar Sultan (3) for which one has to fall back upon
construing the rules governing the state judicial service in question. But
a stand out feature which emerges from the decision in Malik Mazhar
Sultan (3) must equally be emphasized. The judgment of this Court
G enunciates, in no uncertain terms, that the process of selection to the
state judicial services has to take place on an annual basis. As the orders
passed by this Court on the IAs by the appellant indicate, the requirement
of yearly selection does not ordinarily brook exception. The court however
reserved to itself the power to exempt in a given situation a State or
Union Territory from compliance with the time schedule or extend time
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 333
[DR. DHANANJAYA Y CHANDRACHUD, J.]

where peculiar local conditions require the grant of such an exemption A
or extension. The significant aspect of the decision in Malik Mazhar
Sultan (3) is that the recruitment process is initiated each year with a
notification of vacancies by the appellant and culminates in the
appointment of candidates and their joining service. Once the process of
selection is annual, the notification of probable or anticipated vacancies
B
has to be for the selection year. The expression ‘probable’ means what
is anticipated, expected and likely. The expression thus comprehends
the existing vacancies and those which are anticipated due to retirement,
promotion, death or resignation and to which some vacancies can be
added to incorporate imponderable events during the recruitment process.
In construing the rules by the State Judicial Service, more particularly C
the process of notifying the probable vacancies, an effort must be made
to harmonize the rules with the object, intent and purpose underlying the
directions that were issued under Article 142 in Malik Mazhar Sultan
(3). This exercise becomes necessary for another reason. In the present
case, Rule 7(1) refers to “notifying the probable number of vacancies
D
likely to be filled up”. However, Rule 7(1) does not expressly indicate
what is meant by this expression. The ambit of that phrase should receive
content and meaning based on what was envisioned in Malik Mazhar
Sultan (3). The decision of this Court indicates that by 15 January every
year the number of vacancies is to be notified by the appellant. The
manner in which the vacancies are to be calculated is also stipulated. In E
making appointments to the post of Civil Judge (Junior Division) by direct
recruitment the vacancies are to be calculated by including
(a) Existing vacancies;
(b) Future vacancies that may arise within one year due to
retirement; and F

(c) Future vacancies that may arise due to promotion, death or
otherwise.
Originally, in the judgment of this Court dated 4 January 2007, the
third category [(c) above] was to consist of “say 10 per cent of the G
number of posts”. Subsequently, by the order dated 24 March 2009, the
stipulation was varied as a consequence of which, it has been envisioned
that in future the High Courts/Public Service Commissions “shall notify
the existing number of vacancies plus the anticipated vacancies for the
next one year and some candidates also to be included in the wait-list”.
H
334 SUPREME COURT REPORTS [2021] 1 S.C.R.

A The existing number of vacancies is an objective fact which is known to
the particular High Court. Anticipated vacancies are those which arise
as a part of the normal exigencies of service in the ensuing year due to
factors such as promotion, death or resignation from service. These
exigencies are normal to a service but these vacancies are difficult to
predict with precision. In the original order dated 4 January 2007 in
B
Malik Mazhar Sultan (3) category (b) consisting of “future vacancies
that may arise within one year” was qualified by the expression “due to
retirement”. Retirements are known as an objective factor since the
date on which a candidate appointed to judicial service would attain the
age of superannuation is known in advance. Category (c) consisting of
C future vacancies referred to those which may arise due to promotion,
death or otherwise, the exact number being somewhat in the realm of an
imponderable future event. As a result of the modification which has
been brought about by the order of this Court dated 24 March 2009, the
first category of existing vacancies is maintained as it is. The second
category consists of anticipated vacancies “for the next one year”. This
D
category would incorporate vacancies which were likely to arise on
account of retirement as well as those which may be anticipated in the
ordinary course due to the exigencies of service such as promotion,
resignation or death of candidates within the service. Significantly, the
last category incorporates the principle that “some candidates also be
E included in the wait-list”. The inclusion of some candidates in the wait-
list is to ensure the availability of candidates in the event that additional
vacancies occur during the course of the year due to the exigencies of
service. But significantly, the entire process which is contemplated by
the decision in Malik Mazhar Sultan (3) is an annual process. Hence,
the vacancies which are to be notified in the advertisement which is
F
issued by the High Court are relatable to the recruitment year for which
a selection is carried out. Malik Mazhar Sultan (3) does not incorporate
future vacancies, that is those which lie beyond the recruitment year for
which the selection is to be made.
49. Now while giving meaning and content to the provisions of
G Rule 7(1) of the Kerala Rules 1991 as amended, it would be appropriate
to harmonize the ambit of the expression “notifying the probable number
of vacancies” on the basis of the Article 142 directions in Malik Mazhar
Sultan (3). This would not do violence to the provisions of Rule 7(1),
since Sub-rule 1 does not define what is meant by probable vacancies.
H Moreover, as we have already explained, Rule 7(2) deals with tenure of
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 335
[DR. DHANANJAYA Y CHANDRACHUD, J.]

the approved list while the determination of the probable number of A
vacancies falls within the ambit of Rule 7(1). Hence, in determining the
probable number of vacancies likely to be filled up, the particular High
Court has to take into account:
(i) The existing number of vacancies;
(ii) Anticipated vacancies during the year arising due to B
retirements and other exigencies of service including
promotion, death and resignation; and
(iii) Some candidates are to be included in the wait-list.
The ambit of the probable number of vacancies in Rule 7(1) must C
be based on this assessment. In fact, as noted earlier, this was exactly
what was done by the appellant.
50. The submission which has been urged on behalf of the
respondents, which found acceptance by the High Court was that since
the tenure of the approved list is for a period of one year from the date D
of the approval of the Governor or the publication of a fresh list, whichever
takes place earlier, the vacancies which have arisen between 7 May
2020 (the date of the approval of the Governor) and 6 May 2021 (the
expiry of one year from the date of approval) must also be added in to
form a part of the selection for 2019. There are significant problems in
accepting this line of interpretation which has found acceptance by the E
High Court.
51. Firstly, this line of interpretation requires the appointing
authority to take into account vacancies which have arisen in the
subsequent recruitment year 2020 in making appointments in pursuance
of the selection for recruitment year 2019. This, as a matter of first F
principle, is impermissible. The determination of probable vacancies in
terms of Rule 7(1) is a determination which is based on the vacancies
which are projected during the course of that recruitment year, in this
case 2019. This exercise cannot cover, consistent with the mandate of
Art 14 and Art 16, future vacancies of a subsequent year of selection.
G
Nor does Rule 7(1) bring vacancies of a future year within the computation
of probable vacancies.
52. Secondly, adopting the interpretation which has been suggested
on behalf of the respondents would lead to serious anomalies. As we
have seen, a notification was issued by the appellant in the month of
H
336 SUPREME COURT REPORTS [2021] 1 S.C.R.

A June 2020 for the 2020 recruitment. The consequence of accepting the
arguments of the respondents would be that posts which have to be
allocated for recruitment against the existing and anticipated vacancies
for 2020 would have to be reduced by allocating them to recruitment
year 2019. The appellant has expressly determined and notified the
vacancies which have arisen for 2020. The respondents argued that
B
though the original notification referred to a probable number of vacancies
the corrigendum deleted the expression ‘probable’. This, in our view, is
not a matter of moment since the essence of the controversy lies in
interpreting the provisions of the Rules as they stand. If the respondents
were right in their submission, this would require the appellant to
C progressively remove from the ambit of the vacancies which are notified
for the subsequent recruitment year, the vacancies which are allocated
to the previous year on the basis of a supposed interpretation of Rule
7(2). This would clearly be impermissible and bring uncertainty to the
recruitment for subsequent years. It will cause serious prejudice to
candidates who qualify in terms of eligibility during the recruitment
D
process of 2020 by reducing the number of probable vacancies and adding
them to the previous recruitment cycle.
53. The third anomaly which arises from the interpretation, which
has been suggested by the respondents and which has been accepted by
the High Court, was noticed by the High Court itself in the course of its
E judgment. If Rule 7(2) were to be given overriding importance without
reading it in juxtaposition with the determination of the probable number
of vacancies under Rule 7(1), the issue is until what period of time would
vacancies arising after the date of approval by the Governor have to be
factored into account. Some of the petitioners before the High Court, as
F indeed some of them in the written submissions before this Court, indicated
that the number of vacancies as existing on the date of the approval of
the Governor should form the basis of making appointments. The High
Court rejected these arguments in the following observations:
“9. Immediately we have to notice that we cannot go mid-way to
G direct appointment to vacancies arising till the date of approval.
We either decline the relief or grant it as permissible under the
rules. The date of approval is only relevant to determine the validity
period of the list, as per the rules. We cannot give the date of
approval any significance other than that prescribed in the rules.
Which if allowed would literally be a half baked cake, neither
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 337
[DR. DHANANJAYA Y CHANDRACHUD, J.]

good for consumption nor completely worthless to be thrown out. A
We would not rest ourselves on such sticky premise of
uncertainty.”
The High Court was correct in comprehending that it could not
accept a half-way measure merely because it suited the interest of some
of the candidates who would be appointed if the vacancies which had B
arisen up to the date of approval were taken into account. Noticing this
anomaly, the High Court by its impugned judgment went the entire extent
by issuing the following directions:
“38… We direct the appellant to prepare a select list from the
approved merit list including those vacancies which arise as on C
today and those anticipated till 06.05.2021 or any other date on
which the appellant expects the next list to be published.”
In its conclusion, the High Court also observed:
“We dismiss the Writ Appeals, directing the High Court to forward
a select list in accordance with the rules 14 to 17 of Part II of the D
KS&SSR, 1958 from the approved merit list.”
The plain consequence of the decision of the High Court would
be that vacancies which have arisen during 2020 would be allocated to
2019. This could only be done if the vacancies for 2020 were anticipated
to arise during 2019, which is not the case. E
54. The fourth difficulty in accepting the line of approach of the
High Court rests on constitutional principles. Undoubtedly, the validity of
Rule 7(2) was not in question before the High Court. Counsel for the
respondents argued that it does not lie in the province of the appellant to
raise a doubt about the validity of its own rules, more particularly Rule F
7(2). It is necessary to note that Mr V Giri, learned Senior Counsel
appearing on behalf of the appellant did not suggest or argue that Rule
7(2) should be held to be invalid. The submission of learned Senior
Counsel is that the expression “probable” denotes an addition/deduction
which has to be made due to the imponderables of service such as death,
G
resignation and promotion. The submission of the appellant is that a literal
interpretation of Rule 7(2), without reference to the constitutional
requirement of not operating a select list beyond the notified vacancies,
would render the Rule violative of Articles 14 and 16 and such an
interpretation should be avoided. In other words, his submission was
H
338 SUPREME COURT REPORTS [2021] 1 S.C.R.

A that a constitutional interdict cannot be overcome in the manner it has
been suggested by the respondents and a harmonious interpretation of
the judicial service rules in the light of the directions in Malik Mazhar
Sultan (3) should have been resorted to by the High Court. We are in
agreement with this line of submissions, based as it is on the precedent
of this Court. It is a settled principle of service jurisprudence that when
B
vacancies are notified for conducting a selection for appointments to
public posts, the number of appointments cannot exceed the vacancies
which are notified. The answer to this submission, which has been
proffered by the respondents is that under Rule 7(1) a probable number
of vacancies is required to be notified and since an exact number is not
C notified, there is no constitutional bar in exceeding the 37 probable
vacancies that were notified in 2019. The difficulty in accepting the
submission is simply this: it attributes to the expression “probable number
of vacancies” a meaning which is inconsistent with basic principles of
service jurisprudence, the requirement of observing the mandate of
equality of opportunity in public employment under Articles 14 and 16
D
and is contrary to the ordinary meaning of the expression. Black’s Law
Dictionary22 defines the expression ‘probable’ as:
“Probable’: likely to exist, be true, or happen”
‘Probable number of vacancies’, as we have seen, is based on
E computing the existing vacancies and the vacancies anticipated to occur
during the year. It also accounts for the possibility of inclusion of some
of the candidates that are in the wait-list. However, the expression
‘probable’ cannot be interpreted as a vague assessment of vacancies
that isn’t founded in reason and can be altered without a statutorily
prescribed cause. To allow the concept of probable number of vacancies
F in Rule 7(1) to trench upon future vacancies which will arise in a
succeeding year would lead to a serious constitutional infraction.
Candidates who become eligible for applying for recruitment during a
succeeding year of recruitment would have a real constitutional grievance
that vacancies which have arisen during a subsequent year during which
G
22
11 th Edition (Thomson Reuters West, 2019).
The definition of ‘Probable’ in the 4 th edition, Revision 6 (1971) of the Black’s Law
Dictionary was: “Having the appearance of truth; having the character of probability;
appearing to be founded in reason or experience…; having more evidence for than
against; supported by evidence which inclines the mind to believe, but leaves some
H room for doubt; Apparently true yet possibly false.”
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 339
[DR. DHANANJAYA Y CHANDRACHUD, J.]

they have become eligible have been allocated to an earlier recruitment A
year. If the directions of the High Court are followed, this would seriously
affect the fairness of the process which has been followed by glossing
over the fact that vacancies which have arisen during 2020 will be allocated
for candidates in the select list for the year 2019. Such a course of
action would constitute a serious infraction of Articles 14 and 16 and
B
must be avoided. To reiterate, the submission of the appellant which we
are inclined to accept is not that Rule 7(2) is invalid but that a harmonious
interpretation of Rules 7(1) and (2) must be adopted that is consistent
with the Article 142 directions in Malik Mazhar Sultan (3) to bring the
rules in accord with the governing principles of constitutional jurisprudence
in matters of public employment. C
55. Fifthly, at this stage, we must also advert to another serious
aspect which arises from the judgment of the High Court. The High
Court noticed in the course of its analysis that the acceptance of the
submission of the respondents would lead to the appellant, on its
administrative side, having to carry out piece-meal training for candidates D
who are appointed to vacancies arising in the year after approval of the
merit list. The approval of the Governor was received on 7 May 2020. If
vacancies which arise between 7 May 2020 and 6 May 2021 are to be
reckoned in making appointments for the 2019 process, the training of
candidates who are appointed against the subsequent vacancies would
take place piece-meal and in a sporadic manner after the initial batch of E
recruits has been sent on training. Upon receipt of the approval of the
Governor, candidates to whom appointment orders were issued joined
their training and are in fact in the midst of their training. The High Court
without venturing a solution to this imbroglio came out with a suggestion
in paragraph 29 of this judgment, which is extracted below: F
“29. There could arise one problem insofar as the High Court
having to carry out training, piece meal, of the recruits appointed
to the vacancies arising in the one year after the approval of the
merit list. This could be solved by selecting for training even persons
whose vacancies have not arisen, in anticipation. When G
appointments are made in June 2020 in accordance with Rue 7(2)
it could only be regularly made to vacancies that actually arose till
that date. The High Court then would be faced with the problem
of appointing fresh recruits in the enabling year to arising vacancies
who also would have to be given training for one year which may
H
340 SUPREME COURT REPORTS [2021] 1 S.C.R.

A put the training process into jeopardy. We only observe that the
High Court on its administrative side in consultation with the
Government could device a procedure through which training could
be commenced even for successful candidates, finding a place in
the merit list, who could be appointed to the anticipated vacancies,
which vacancies definitely would arise by the time their training is
B
completed. This can especially be managed since the validity of
the list go beyond one year from the date of approval of the merit
list and the training can commence only after the approval of the
merit list. The selection of recruits to anticipated vacancies for
undergoing training could also be made subject to the vacancy
C arising and the new list coming into force with continuance in
training on a stipend till a regular appointment is made to the
vacancy. We do not intent these observations to be in the nature
of a direction and are only our thoughts, expressed aloud.”
The solution which the High Court has indicated is, as it clarified,
D not in the nature of a direction but “only our thoughts, expressed allowed”.
The solution suggested by the High Court is that candidates may be
selected and sent for training even against vacancies which have not
arisen, in anticipation of vacancies arising in future. The High Court
observed that when appointments were made in June 2020, they could
only be regularly made to vacancies that actually arose until that date.
E The High Court took notice of the fact that on its administrative side,
appointment of fresh recruits to vacancies which would arise in the
ensuing year would put the training process into jeopardy. However, it
suggested that in consultation with the government, a procedure could
be devised by which training could be commenced for candidates against
F vacancies which have still not arisen and which would arise in the future.
The High Court even suggested that the trainees appointed against
possible future vacancies could be paid a stipend. The solution which
has been suggested by the High Court is plainly unacceptable. Persons
are sent on training on being appointed to the judicial service and there
cannot be two categories of trainees, one of whom receives a stipend
G since the vacancies for which they have been selected are yet to arise.
Moreover, there will be a serious discontent if not all the candidates who
are sent on training in expectation of future vacancies can be
accommodated in service. We have emphasized the above aspect, for
the simple reason that the High Court was cognizant of the serious
H problems which would result in the administration if its decisions were to
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 341
[DR. DHANANJAYA Y CHANDRACHUD, J.]

hold the field. The suggestion by the High Court that the administration A
must send on training, candidates for whom there are no vacancies in
the service is contrary to law. In the event that some of the candidates
who are sent on training cannot be absorbed at a future date for want of
vacancies, it would lead to a serious dissatisfaction and be unfair to the
candidates who were sent for training. This would also cause a burden
B
on the exchequer requiring it to pay a stipend to persons who are yet to
be recruited to the judicial service, there being no present vacancies to
accommodate them.
56. During the course of the submissions, reliance has been placed
on behalf of the respondents on the decision of this Court in Virendra S
Hooda v. State of Haryana23. This was a case where the Haryana C
Public Service Commission issued an advertisement for recruitment to
the Executive Branch of the Haryana Civil Service. The advertisement
covered 12 posts, 7 of which were in the general category and 5 were
reserved. A written examination was held following which the results
were published. The appellants were in the list of candidates whose D
results were declared but did not place sufficiently high to be appointed
to the Civil Service (Executive Branch). They were given alternate posts.
The writ petitions filed by the appellants were dismissed by the High
Court and when the matter reached this Court, they were granted liberty
to file fresh writ petitions for getting appointments on the basis of two
circulars of 1957 and 1972 which laid down the procedure to be adopted E
for selection against all notified additional vacancies which arise within
six months from the recommendation of the names. The High Court
rejected the claim again but this Court eventually took the view that
when a policy was declared by the State as to the manner of filling up
the post and the policy is declared in terms of the rules, the instructions F
not being contrary to the rules, the State ought to follow them. Now
significantly, the administrative instructions which were referred to were
subsequently repealed by legislation with retrospective effect. The validity
of the law was upheld by this Court in Virender Singh Hooda v. State
of Haryana24, though appointments made already in pursuance of the
directions of this Court were left undisturbed. The first decision in G
Virender Singh Hooda would have to be read in the context of the
facts of the case. Significantly, this Court did not have occasion to consider

23
(1999) 3 SCC 696
24
(2004) 12 SCC 588 H
342 SUPREME COURT REPORTS [2021] 1 S.C.R.

A the earlier decision including the principle that appointments cannot be
made, consistent with Articles 14 and 16, in excess of notified vacancies.
This principle was reiterated in Prem Singh (supra) which was prior to
the decision in Virender Singh. Be that as it may, we are of the view
that in the above facts the decision in Virender Singh Hooda will not
assist the respondents and would have to be confined to the peculiar
B
circumstances in that case.
57. The respondents urged, on the basis of Annexures A-1 to A-
3 produced before the High Court along with the statement filed on 18
August 2020, and referred to in the appendix to the impugned judgment,
that more than 37 vacancies actually existed as on 31 December 2019
C and therefore the select list could be operated for a larger number of
vacancies. We are unable to subscribe to this submission. The
respondents participated in the selection process on the basis of 37
probable vacancies. Moreover, it has been submitted on behalf of the
appellants that, Annexure A-2 appended to the submissions would indicate
D that the total number of vacancies as on 31 December 2019 were shown
to be 43, which included 37 regular vacancies and 8 NCA vacancies.
Out of the 37 regular vacancies only 32 could be included in the select
list for the year 2019 because as against 5 vacancies candidates were
not available against the reserved turn. Those five vacancies have been
treated as NCA vacancies for 2020 and have been included in the list of
E vacancies for the succeeding year. The 37 regular vacancies and 8 NCA
vacancies were notified for the year 2019, in accordance with the break
up provided in Malik Mazhar Sultan (3). It has been stated that 45
vacancies notified for selection year 2019 included 4 vacancies under
the 10 per cent addition that had to be made for every year. However,
F only two of the four vacancies had actually arisen and hence the figure
of 43. On this basis, it has been submitted that there is no discrepancy in
the figures which were given in the statement filed before the High
Court and the statement filed on additional affidavit before this Court.
58. Finally, it has been urged on behalf of the respondents that the
G recruitment process for the year 2020 has been delayed as a result of
the onset of the Covid-19 pandemic. A recruitment notification was issued
in the month of June 2020. It has been submitted that the actual process
of selection would take about one year following which candidates would
have to be sent on training. Hence it has been submitted that candidates
for recruitment year 2020 would be in a position to actually commence
H
HIGH COURT OF KERALA v. RESHMA A. & OTHERS ETC. 343
[DR. DHANANJAYA Y CHANDRACHUD, J.]

judicial duties only in early 2023. Having come to the conclusion that the A
judgment of the High Court is erroneous, we are of the view that it
would be impermissible to grant relief to the respondents purely on this
basis. The respondents have no vested right to appointment for the 2019
selections. They cannot claim any right, or even equity, on the ground
that the selection for the subsequent year may be delayed. Vacancies
B
for 2020 must be allocated to candidates who are duly selected in
pursuance of the recruitment process for 2020. Candidates who have
ranked lower in the 2019 selection and were unable to obtain appointments
cannot appropriate the vacancies of a subsequent year to themselves.
To allow such a claim would be an egregious legal and constitutional
error. C
59. For the reasons which we have indicated, we are of the view
that the judgment of the High Court cannot be sustained. We accordingly
allow the appeals and set aside the impugned judgment and order of the
Division Bench of the High Court of Kerala dated 26 August 2020. The
writ petitions filed by the respondents before the High Court shall stand D
dismissed. There shall be no order as to costs.
60. Pending applications, if any, stand disposed of.

Devika Gujral Appeals allowed.
E

F

G

H