THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE & ANR. ETC.versusDR. SUSMI C.T. & ANR. ETC.

                          [2021] 9 S.C.R. 573                            573


     THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE                           A
                    & ANR. ETC.
                         v.
                  DR. SUSMI C.T. & ANR. ETC.
                (Civil Appeal No. 7537-7544 of 2021)
                                                                         B
                        DECEMBER 08, 2021
      [UDAY UMESH LALIT, S. RAVINDRA BHAT AND
                      BELA M. TRIVEDI, JJ.]
       Service Law – Selection – Right of selected candidates – Extent
and ambit of – Candidates complaining that some vacancies had            C
been kept back and not reported –Held: Right of those who find a
position in the ranked list is to be advised against vacancies which
arise during the currency of the list, and which are reported – In
the present case, it was as against vacancies that were reported to
the State Public Service Commission, that the candidates had some
semblance of a right – However, as far as those not reported are         D
concerned, the candidates cannot claim a right per se – It is possible
that in given situations, the State may be lethargic, or even may not
wish to report vacancies – In such situations, undoubtedly the
individuals awaiting appointment may have recourse to judicial
remedies – In such proceedings, the government or the concerned          E
agency can furnish a suitable explanation – If that is found to be
arbitrary, appropriate directions may follow – However, the
procedure in all such cases, would be to consider the State’s
response– Remedy – Judicial Review.
      Practice and Procedure – Judgment – Challenged by the State        F
against only one party – Propriety – Held: The State or any public
agency, cannot be precluded from challenging a judgment, on the
ground that it approaches the court, filing an appeal against only
one party – Even if in that case, the normative basis of the judgment
under appeal is disturbed, and the issue concerns a matter having
public ramifications, such as tax, or recruitment, the final judgment    G
would bind all concerned – In the present case too, therefore, the
High Court’s reasoning that the state had not filed petitions against
other persons, was flawed; that ipso facto should not have precluded
an examination of the merits of the orders of the Tribunal.
                                                                         H
                                 573
574             SUPREME COURT REPORTS                             [2021] 9 S.C.R.


A            Shankersan Dash v. Union of India [1991] 2 SCR 567
             – followed.
             Shenoy & Co v. Commercial Tax Officer (1985) 2 SCC
             512 : [1985] 3SCR 659 – relied on.
                                Case Law Reference
B
      [1985] 3SCR 659                     relied on                  Para 23
      [1991] 2 SCR 567                    followed                   Para 25
            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.7537-
      7544 of 2021.
C
             From the Judgment and Order dated 24.07.2019 of the High Court
      of Kerala at Ernakulam in R.P. Nos.657/2019 in O.P. (KAT) No.256/
      2019, R.P. No.659/2019 in O.P. (KAT) No.24/2019, R.P. No.660/2019
      in O.P. (KAT) No.17/2019, Common Judgment dated 24.07.2019 in O.P.
      (KAT) Nos.286 and 287/2019 and Common Judgment dated 19.06.2019
D     in O.P. (KAT) Nos.17 and 24/2019.
            Pallav Sishodia, Sr. Adv., G. Prakash, Ms. Priyanka Prakash, Ms.
      Beena Prakash, Manan Sanghai, Vipin Nair, P. B. Suresh, Arindam Ghosh,
      Karthik Jayashankar, Prakash Baghel, Sanand Ramakrishnan, P. A. Noor
      Muhamed, Jishnu M. L., Prakash Ranjan Nayak, Roy Abraham, Adithya
E     K. Roy, Himinder Lal, Advs. for the appearing parties.
             The Order of the Court was passed by
             S. RAVINDRA BHAT, J.
             1. Leave granted.
F            2. The appealswere heard finally with the consent of the counsel
      for the parties.
            3. The appellant (hereafter referred to as the “Director”)is
      aggrieved by the impugned final judgment and order dated 24.07.20191,
      as well as orders dated02.07.20192 and 19.06.20193 passed by the High
G     Court of Kerala at Ernakulam.

      1
        R.P. No. 657/2019, R.P. No. 659/2019, R.P. No. 660/2019, OP(KAT) No.286/2019,
      OP (KAT) No.287/2019
      2
        OP(KAT) No. 256/2019
      3
        OP(KAT) No. 17/2019 and OP(KAT) NO. 24/2019
H
         THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE                           575
       v. DR. SUSMI C.T. & ANR. ETC. [S. RAVINDRA BHAT, J.]

      4. The Director had filed petitions challenging orders of the Kerala   A
Administrative Tribunal (hereafter referred to as the “KAT”) which had
required the reporting of 28 vacancies in the post of Medical Officer
(Ayurveda), Assistant Insurance Officer in the Department of Indian
System of Medicine (hereafter referred to as the “posts”).

       5. The Kerala Public Service Commission (hereafter referred to        B
as the “KPSC”) issued a notification on 19.11.2014 eliciting applications
from amongst eligible candidates for the posts. The first respondent along
with several others applied for these posts. These candidates were
included in the ranked list published on 19.11.2014. In accordance with
the rules governing KPSC, the Department in question- i.e. Indian System     C
of Medicine and Insurance Medical Service (hereafter referred to as
the “department”) -had to report vacancies for the duration in which the
list was operative. According to the procedure prescribed by those rules,
vacancies had to be notified and candidates advised, after which they
were to be appointed. On 14.11.2017 the first respondent, and others         D
(hereafter referred to as the “applicants”) preferred proceedings under
Section 19 of the Administrative Tribunal Act before the KAT 4. The
applicants sought the direction to the department to report 65 vacancies
of the posts to KPSC before the list was to expire i.e. on or before
18.11.2017. An interim application seeking a direction to advice 28
vacancies remaining to be reported to the KPSC, was sought. The interim      E
order was granted on 14.11.2017. Like the respondent in this case, other
applicants also moved the KAT with different applications. These were
considered and disposed of on 03.08.2018. The KAT took into
consideration the pleadings and material before it, as well as the
contentions urged. It was contended that about 33 anticipated vacancies      F
were reported on 08.11.2017 and 28 provisional vacancies also needed
to be reported which was taken care of by the interim order dated
14.11.2017. The KAT accepted an argument on behalf of the applicants
that by a promotion order dated 20.06.2017, eligible Medical Officers
(Ayurveda) were promoted as Senior Medical Officers, as a result of          G
which 28 vacancies arose which had to be reported. In addition, the
KAT also noted 15 other vacancies had to be treated as additional (over
and above the 28 vacancies reported in terms of its interimorder) and
that the KPSC was bound to select candidates as against those vacancies.
4
    O.A. 2816/2017                                                           H
576                SUPREME COURT REPORTS                         [2021] 9 S.C.R.


A           6. The Department felt aggrieved and approached the Kerala
      High Court by filing O.P. (KAT) 256/2019. The High Court dismissed
      the Writ Petition on 02.07.2019, holding that it had been filed belatedly.
             7. As far asthe other petitions filed by the department were
      concerned,the High Court took note of the fact that in some cases Review
B     Petitions were filed and after their dismissal Writ Petitions were preferred
      before it, and in some 5 the orders remained unchallenged. As a
      consequence, the High Court held that the finality of the Tribunal’s order
      bound the department and consequently it could not maintain the Writ
      Petitions which were dismissed.

C             8. It is firstly urged by Mr. Pallav Sisodia, senior counsel on behalf
      of the Director, that the High Court erred in rejecting the Department’s
      petition on hyper-technicalities. It is pointed out that when the first Writ
      Petition O.P. 256/2019 came up for hearing the High Court rejected it on
      the ground of laches. A Review Petition (657/2019) was filed and rejected.
      It is pointed out that the Review Petition against the order in O.A. 2612/
D     2017 was dismissed on 12.11.2018 after which O.P. 256/2019 was filed
      against main order dated 03.08.2018. Since only seven months was
      consumed and given that there was no question of limitation, the High
      Court was in error in rejecting the petition on the ground of delay.
      Furthermore, the order in O.A.34/2018 was connected to O.A.2212/
      2017 which was challenged by the Department by filing O.P. 221/2019.
E     That petition was still pending before the High Court. The dismissal,
      therefore, on the ground of the delay, was clearly in error.
             9. It is urged by Mr. Sisodia that once the department sought
      review which was pending before the tribunal, the High Court could not
      have assumed that the matterhad attained finality. On merits it is argued
F     that the KAT fell into error by firstly directing the department to advice
      28 vacancies on an assumption that they exist given that the rank list
      was to expire in terms of the rules on 18.11.2017. Furthermore, the High
      Court overlooked the important feature that the KAT completely ignored
      the department’s counter affidavit which clearly disclosed that as against
      163 vacancies which arose during the period of the currency of the
G
      ranked list - 158 candidates had been advised and 5 vacancies could not
      be filled since they were earmarked for persons with disabilities.
            10. It was further argued that initially when the applicants
      approached the KAT it was their claim that 125 candidates were advised,
      5
H         O.A. 2342/2017, 2212/2017, 2612/2017 and 2631/2017
      THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE                                577
    v. DR. SUSMI C.T. & ANR. ETC. [S. RAVINDRA BHAT, J.]

as against the 163 vacancies advertised in 2011. The data presented to         A
the tribunal on the other hand clearly showed that every vacancy that
occurred as long as the rank list was inforce, was reported. In this context
learned senior counsel appearing for the department relied upon a tabular
chart to say that vacancies ranging between 17 and 1 were continuously
reported for the period 05.05.2014 till 17.11.2017. It was further argued
                                                                               B
that the KAT fell into error in holding that several vacancies had arisen
due to promotion of Senior Medical Officers.
       11. Counsel relied upon the affidavit filed by the Director on
03.08.2018 which clearly stated that the order dated 20.06.2017 merely
sanctioned higher grade and had promoted Medical Officers as per the
ratio of 1:3 and the officials were allowed to continue under the same         C
institutions. It was a categorical position of the Department that no
vacancy arose in the entry cadre. The affidavit further stated that:
      “3. ..As per GO (Rt) No. 459/2017/Ayush dated 11.10.2017,
      16 vacancies arose in Medical Officer (Ayurveda) post.
      Among this one vacancy was filled up by rejoining of a                   D
      Medical Officer. Balance 15 vacancies were reported to
      Kerala Public Service Commission and appointment was given
      to candidates as per the advise list from the Kerala Public
      Service Commission.
      4. It is submitted that Government have reported total number            E
      of 158 vacancies in the Medical Officer (Ayurveda) including
      the above 15 vacancies and as per the advise list from Kerala
      Public Service Commission, 158 candidates were appointed
      from the category No. 268/2011 rank list. 5 vacancies were
      set apart for Physically Handicapped candidates by Kerala                F
      Public Service Commission.”
       12. It was argued that the KAT’sdirections have the effect of
disturbing cadre strength of Medical Officers in the department. Besides
the directions,results in the appointment of candidates were in numbers
excess to what the rules would permit. In this context learned counsel         G
relied upon Rules 13 and 14 of the Kerala Public Service Commission
Rules of Procedure,1976 (hereafter referred to as “rules”).
        13. Mr. P. B. Suresh, learned counsel appearing for the respondents
i.e. those who were applicants before the KAT - argued that this Court
should not interfere with the impugned orders. Learned counsel contended
                                                                               H
578             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     that although in terms of the rules, the life of the ranked list was two
      years, nevertheless it was extended by one more year. Counsel submitted
      that Rule 14 of the rules obliged the KPSC to advise candidates for all
      vacancies reported and pending before it, and vacancies which could be
      reported for the period during which the ranked list was alive.
B            14. It was therefore submitted that the department’s omission to
      report 28 vacancies and other additional vacancies which arose on
      account of the promotions of incumbent Medical Officers (to the post of
      Senior Medical Officers) entitled the candidates awaiting appointments
      and whose names were reflected in the rank list (like the applicants)to
      seek judicial remedies. The KAT after thoroughly examining all the
C     materials and considering the contentions made before it correctly held
      that there were adequate vacancies which had to be reported. The
      department did not disclose any sound rationale for not reporting such
      vacancies. In these circumstances the interim order dated 14.11.2017
      was meant to and did complete justice to the parties.
D            15. Learned counsel particularly relied upon the reasoning of the
      KAT in its order dated 03.02.2018 (in O.A. 1900/2017). He submitted
      that the KAT took note of the Government order dated 20.06.2017
      permitting 115 Medical Officers to the post of Senior Medical Officers
      which resulted in 115 vacancies during the currency of the ranked list.
      These in terms of Rule 14 had to be reported. The absence of any sound
E     reason for not being reported, justified the KAT’s final operative directions.
             16. Mr. Noor Muhamad, learned counsel appearing for some of
      the applicant candidates, also relied upon Rule 14. He further contended
      that the department’s position that the KAT’s order with respect to
      vacancies arising after the promotion order dated 20.06.2017 is justified.
F     Those vacancies necessarily had to be reported to the KPSC for
      appointment and further process. He also submitted that the posts and
      promotions were governed by the Indian System of Medicines (Kerala
      Service Rules, 2005). It was submitted that the relevant category of
      posts i.e. Senior Medical Officers were to be filled only by promotion
      from the cadre of Medical Officers. The Departmental Promotion
G
      Committee convened for promotion of 140 Medical Officers to the post
      of Senior Medical Officers which resulted in 115 vacancies. This was
      consciously taken into account; the order was also considered by the
      KAT which issued directions. In these circumstances the High Court
      was justified in rejecting the Department’s Writ Petition.
H
  THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE                              579
v. DR. SUSMI C.T. & ANR. ETC. [S. RAVINDRA BHAT, J.]

  Reasoning and conclusions                                              A
  17. Before proceeding with the discussion on merits, it is necessary
  to extract the relevant rules. Rules 13 and 14 are reproduced
  below:
  “13. The ranked lists published by the Commission shall remain
  in force for a period of one year from the date on which it            B
  was brought into force provided that the said list will continue
  to be in force till the publication of a new list after the expiry
  of the minimum period of one year or till the expiry of three
  years whichever is earlier:
  Provided that the above rule shall not apply in respect of             C
  ranked lists of candidates for admission to Training Course
  that leads to automatic appointment to Services or posts and
  that in such cases the Ranked Lists shall …in force after one
  year from the date of finalisation of the Ranked Lists or after
  one month from the date of commencement of the course in               D
  respect of the last batch selected from the list within a period
  of one year from the date of finalisation of the ranked lists
  whichever is later.
  Provided further that the provisions of the proviso above
  mentioned shall not be applicable for the selection for                E
  admission to the Forest Rangers Course and also for
  admission to the Diploma Course in Forestry for which
  selections have to be made annually in accordance with the
  instructions of the Government of India issued from time to
  time. For these selections, the Ranked Lists will be in force
  only for a period of three months from the date of finalisation        F
  of the Ranked Lists or one month from the date of
  commencement of the course whichever is later.
  Provided further that the Commission may take steps for the
  preparation of a new ranked list wherever necessary even
  before the expiry of the period of one year of the ranked list,        G
  by inviting applications but that the ranked list prepared in
  pursuance of the said notification shall be brought into force
  only after the expiry of the period of one year of the existing
  ranked list.
                                                                         H
580     SUPREME COURT REPORTS                        [2021] 9 S.C.R.


A     Provided further that a ranked list from which no candidate
      is advised during the period of one year from the date on
      which it was brought into force shall be kept in force till the
      expiry of three years from the said date and in a case where
      no candidate is advised from the ranked list till the expiry of
      the said period of three years, the duration of the ranked list
B
      shall be extended by the Commission for a further period of
      one year or till at least one candidate is advised from the list
      whichever is earlier.
      Provided further that if the Commission is satisfied of the
      existence of a general ban not exceeding one and a half year
C     in the aggregate duration declared by the Government on the
      reporting of vacancies, to the Public Service Commission, they
      shall have the power to keep alive the ranked lists which are
      normally due to expire during the period of the above said
      ban or within 7 days of the cessation of the ban, for a further
D     period of 30 days from the date of cessation of ban. If the
      commission is satisfied of the ban and its consequences they
      shall issue a notification keeping alive the ranked list in the
      above manner and shall advise candidates to the vacancies
      which actually arose during the normal period of validity of
      the ranked list and certified to be as such by the Appointing
E     Authorities reporting vacancies to the Commission.
      14. The Commission shall advise candidates for all the
      vacancies reported and pending before them and the
      vacancies which may be reported to them for the period during
      which the ranked lists are kept alive in the order of priority,
F     if any, and in the order of merit subject to the rules of
      reservation and rotation, wherever they are applicable.
      Provided that the advice of candidates by the Commission
      from the ranked list kept alive under the 5th Proviso to …..be
      confined to the vacancies that actually arose during the
G     normal period of validity of the ranked lists. Rule 13 and
      certified to be as such by the Appointing Authorities reporting
      vacancies to the Public Service Commission.
      Note: The prolongation under the 5th proviso to Rule 13 shall
      not be deemed to be part of the normal period of validity of
H     the ranked list under Rule 13.”
     THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE                                581
   v. DR. SUSMI C.T. & ANR. ETC. [S. RAVINDRA BHAT, J.]

       18. It is evident, therefore, that candidates can expect that their    A
claim vacancies which occur during the currency of a ranked list, upon
their being advised by the KPSC, would be considered. This obligation,
so to say, is because of the term in Rule 14 that the KPSC “shall advise
candidates for all the vacancies reported and pending before them
and the vacancies which may be reported to them for the period
                                                                              B
during which the ranked lists are kept alive.” If one keeps in mind,
that the KPSC’s obligation arises after the vacancies are reported, it is
apparent, that as a prerequisite for that obligation, the vacancies should
occur, and should be reported.
       19. In the present case, the department’s clear position in its
affidavit, before the KAT was that all vacancies were reported, and           C
that only 5 vacancies that had to be filled from amongst candidates with
disabilities, were unfilled. This is quite apparent from the tabular chart,
which disclosed the particulars of the vacancies that had arisen- during
the currency of the ranked list, as well as those reported, and the final
tally of vacancies which existed, as on the date when the ranked list         D
expired, i.e 18.11.2017:




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                                                                              F




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582            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A




B




C




D




E
            20. The basic premise for the KAT’s direction – which was
      affirmed by the High Court - was that 28 vacancies were not reported
      and that 15 others arose. The KAT also formed the opinion that a large
      number of vacancies arose in the Medical Officers’ cadre, on account
      of promotion orders dated 20.6.2017.
F
            21. This court notices that there was no dispute about the figures
      provided by the department, in the tabular chart. These reflected the
      government’s ongoing engagement, and concern that the benefit of
      appointment of all those who could be given appointment during the
      currency of the ranked list, was provided. Even as late as on 17.11.2017,
G     vacancies were reported; between 19.10.2017 and 17.11.2017; 37
      vacancies were advised. There is also no dispute that the advice led to
      further appointment of successful candidates. This being the position,
      the KAT, in this court’s opinion, without any material, proceeded to direct
      the department to advise 28 vacancies on 14.11.2017. There is nothing
      on record to suggest that the government was tardy in reporting or
H
         THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE                             583
       v. DR. SUSMI C.T. & ANR. ETC. [S. RAVINDRA BHAT, J.]

advising, or was intentionally dragging its feet. This order was made at       A
the first hearing, without providing the department with any opportunity
to respond to the demand for an interim order.
       22. In the final order, the KAT virtually confirmed the interim
order, and proceeded to entirely discount the department’s stand that the
promotion of some medical officers to the higher grade, did not                B
automatically lead to existence of vacancies. The department had
explained, in its affidavit, that the entire cadre of Medical Officers (714)
with senior medical officers (237), was 951. The department’s affidavit
had stated that the promotions were not perceived as ratio promotions,
as a result of which vacancies in the cadre of Medical Officers could
not be inferred. Further, according to the department, as in June 2017,        C
the strength of Medical Officers was 851, in excess of the sanctioned
cadre strength. It was contended that for these reasons, no vacancies
could be said to have arisen. However, the KAT rejected that submission;
and the High Court confirmed its orders.
        23. This court is of the opinion that the approach of the High         D
Court was to put it mildly, cavalier. When the department approached
the High Court under Article 226 of the Constitution, its petition was
rejected on the ground of laches, despite the fact that the main order of
the KAT was given just a year before presentation of the petition;
furthermore, the department had also filed a review petition. As far as        E
the other writ petitions are concerned, the High Court gave them a short
shrift saying that in one of the applications allowed by the KAT, the
order had been allowed to become final. This approach was wrong,
because the department had approached the KAT with a review, which
was pending. Furthermore, even if that were so, the High Court should
have considered the matter on merits, given that the issue involved, had       F
large ramifications. Shenoy & Co v. Commercial Tax Officer6 is an
authority for the proposition that the state or any public agency, cannot
be precluded from challenging a judgment, on the ground that it
approaches this court, filing an appeal against only one party. Even if in
that case, the normative basis of the judgment under appeal is disturbed,      G
and the issue concerns a matter having public ramifications, such as tax,
or – in this case, recruitment, the final judgment would bind all concerned.
In the present case too, therefore, the High Court’s reasoning that the
state had not filed petitions against other persons, was flawed; that ipso
6
    (1985) 2 SCC 512                                                           H
584               SUPREME COURT REPORTS                         [2021] 9 S.C.R.


A     facto should not have precluded an examination of the merits of the
      KAT’s orders.
            24. As noticed earlier, the right of those who find a position in the
      ranked list, is to be advised against vacancies which arise during the
      currency of the list, and which are reported. In this case, the candidates
B     complained that some vacancies had been kept back and not reported.
            25. The right of selected candidates (as those in a ranked list are)
      was explained by a five-judge bench of this court in Shankersan Dash
      v. Union of India7 in the following manner:
               “It is not correct to say that if a number of vacancies are
C              notified for appointment and adequate number of candidates
               are found fit, the successful candidates acquire an indefeasible
               right to be appointed which cannot be legitimately denied.
               Ordinarily the notification merely amounts to an invitation to
               qualified candidates to apply for recruitment and on their
D              selection, they do not acquire any right to the post. Unless
               the relevant recruitment rules so indicate, the State is under
               no legal duty to fill up all or any of the vacancies. However,
               it does not mean that the State has the licence of acting in an
               arbitrary manner. The decision not to fill up the vacancies
               has to be taken bona fide for appropriate reasons. And if the
E              vacancies or any of them are filled up, the State is bound to
               respect the comparative merit of the candidates, as reflected
               at the recruitment test, and no discrimination can be
               permitted.….”
             26. It, is therefore, as against vacancies that are reported to the
F     KPSC, that the candidates have some semblance of a right. However,
      as far as those not reported are concerned, the candidates cannot claim
      a right per se. It is possible that in given situations, the state may be
      lethargic, or even may not wish to report vacancies. In such situations,
      undoubtedly the individuals awaiting appointment may have recourse to
G     judicial remedies. In such proceedings, the government or the concerned
      agency can furnish a suitable explanation. If that is found to be arbitrary,
      appropriate directions may follow. However, the procedure in all such
      cases, would be to consider the state’s response. In the present case,
      the KAT in this court’s opinion, entirely misdirected itself in making an
      7
H         1991 (2) SCR 567
      THE DIRECTOR OF INDIAN SYSTEM OF MEDICINE                                 585
    v. DR. SUSMI C.T. & ANR. ETC. [S. RAVINDRA BHAT, J.]

inquiry whether vacancies had arisen in June 2017, with promotion of            A
some Medical Officers. As the department explained, those promotions
could not automatically result in vacancies, having regard to the fact that
excess number of Medical Officers were on the rolls. Furthermore, the
KAT in our opinion, should not have inquired into the matter, once it was
reported that all vacancies that could be reported, had been reported- as
                                                                                B
is evident from the reply filed by the department, as well as the tabular
chart in it.
      27. For the above reasons, it is held that the impugned judgment
and orders of the High Court cannot be sustained. The said judgment
and order, as well as the orders of the KAT are, accordingly set aside.
The appeals are allowed, but without order on costs.                            C


Devika Gujral                                                Appeals allowed.



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