SMT. K. LAKSHMIversusSTATE OF KERALA & ORS.

                    [2012] 3 S.C.R. 581


                     SMT. K. LAKSHMI                           A
                             v.
               STATE OF KERALA & ORS.
              (Civil Appeal No. 2511 of 2012)

                   FEBRUARY 27, 2012
                                                               B
     [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

      Service law - Appointment/Selection - Filling up of non-
notified vacancies - Propriety of - On facts, issuance of
notification for filling up four vacancies - Application invited C
and written exam held - Only seven candidates qualified for
consideration - Award of additional marks by moderation and
more candidates found place in merit list - Introduction of age
bar provision after commencement of selection process and
as a result exclusion of certain candidates - Challenge to - D
Direction by the High Court that selection process to be
conducted as per the Rules as on the date of issuance of
Notification - Preparation of revised merit list resulting in
exclusion of candidates who were appointed earlier -
Thereafter, the High Court recommending invocation of r. 39 E
by the Government and utilization of four vacancies that arose
subsequently to accommodate the excluded candidates -
Meanwhile writ petition filed challenging award of grace marks
by moderation - Writ petition allowed and all steps taken
pursuant to grant of moderation were held not sustainable - F .
Revised merit list made of only seven students who were
found eligible initially - Writ petition by the appellant,
dismissed holding that he was not one of the seven
successful candidate§ who qualified for consideration - On
appeal, held: Power vested in the Government ulr. 39 could
not have been invoked for filling up the vacancies which had G
not been advertised and which had occurred after the issue
of the initial advertisement - It could not be done for protecting
the service of someone who had found a place in the merit
                            581                                H
    582     SUPREME COURT REPORTS                 [2012] 3 S.C.R.


A list on account of additional marks given to him and who was
  bound to lose that place by reasons of the judgment of the
  Court - Proposed addition of the vacancies was contingent
  upon the Government agreeing to exercise its power ulr. 39
  - Since the Government did not and could not possibly
B exercise the said power as a result of the quashing of the
  marks awarded by way of moderation the proposed addition
  of the vacancies to the number already notified. became
  clearly infructuous - High Court was in the light of the
  subsequent development justified in recalling the
c recommendations made by it - Furthermore, it cannot be said
  that even if the number of vacancies is taken to be limited to
  six, the appellant was entitled to be appointed against one of
  the unfilled vacancies meant for reserved category
  candidates - No foundation was laid in the writ petition filed
o by the appellant nor point was raised before the High Court -
  Appellant participated in the fresh selection process initiated
  by the High Court like many others who were eligible to apply
  - Thus, it is neither proper nor feasible at this stage for this
  Court to interfere with the ongoing selection process - Kera/a
E State Higher Judicial Service Rules - r. 39.
      Notification was issued by the High Court for
  appointment to the six vacancies in the cadre of District
  and Sessions Judges by direct recruitment from the Bar.
  Since only seven candidates qualified the written
F examination, 20 marks were awarded by way of
  moderation to all the candidates who appeared for the
  examination and as such more candidates became
  eligible. Two candidates 'MR' and 'MM' secured
  employment during the interregnum and were excluded
G from the selection process. Their exclusion was
  successfully challenged. Thereafter, interviews were held
  and a final selection list was published. Certain
  candidates were excluded from the list on basis of the
  age bar provision introduced after the selection process
H
     K. LAKSHMI v. STATE OF KERALA & ORS.               583


had commenced. The excluded candidates challenged              A
their exclusion. The Division Bench of the High Court
directed that the selection process be conducted in
accordance with the Rules as were there on the date of
the issuance of the Notification inviting applications.
Pursuant thereto, a revised merit list was issued. The         B
Recruitment Committee considered the merit list and
found that the two open category candidates and one
reserved category candidate who stood appointed earlier
were excluded. Thereafter, on recommendation of the
Committee, the High Court recommended to the                   c
Government to invoke its power under Rule 39 of the
Kerala State Higher Judicial Service Rules and utilise four
vacancies which occurred subsequent to the issue of the
recruitment Notification in addition to the six already
notified. The recommendation sent to the State                 0
Government contained names of nine candidates while
one was kept unfilled in view of the pendency of Special
Leave Petition. The SLP was dismissed and the said slot
was recommended to be filled up by appointing 'MR'
against 10th vacancy. 'CJ' and 'MM' filed writ petition        E
challenging the award of grace marks by way of
moderation to other three candidates included in the said
list and the same was allowed. It was held that all steps
taken pursuant to the grant of moderation were not
sustainable and only seven students who were initially
found eligible should have been subjected to the               F
interview. The merit list was revised again and the
appellant could not be appointed. The appellant
challenged the selection process. The Single Bench of
the High Court dismissed the writ petition holding that the
appellant was not one of the candidates who figured in         G
the list of seven successful candidates qualified initially.
The appellant filed a writ appeal and the Division Bench
of the High Court dismissed the same. Therefore, the
appellant filed the instant appeal.
                                                               H
    584      SUPREME COURT REPORTS              [2012] 3 ·s.C.R.

A         Dismissing the appeal, the Court

          HELD: 1.1. The initial notification confined itself to
    filling up of six vacancies only, confusion relating to the
    said number arose on account of the High Court
    recommending invocation of Rule 39 of the Kerala State
8   Higher Judicial Service Rules by the Government to
    avoid a situation where the candidates who had already
    been appointed pursuant to the selection process had to
    go o'!Yof service on account of the Court directing
    preparation of a revised merit list on the basis of the
C   unamended Rules. It is common ground that the
    vacancies that had arisen after the issue of the
    Notification were sought to be filled up only with the
    solitary purpose of somehow saving the three candidates
    from ouster who were bound to lose their jobs on
D   account of the re-casting of the merit list. All that the High
    Court intended to recommend to the Government was
    that four vacancies that were available in the cadre,
    though the same had arisen after the issue of the
    Recruitment Notification, could be utilised by the
E   Government if it invoked its power under Rule 39. The
    candidates facing ouster could then be continued as an
    exception to the general rule. The said recommendations
    could not have been accepted once the award of
    additional marks by way of moderation was struck down
F   by the High Court in J's case. The inevitable
    consequence flowing from that judgment was that
    anyone who had found place in the merit list only
    because of the benefit of moderation would have to lose ·
    that place and go out of the list. Once that happened the
G   question of retaining the services of the three candidates
    by invocation of powers vested in the Government under
    Rule 39 did not arise. The High Court was in the light of
    the subsequent development justified in recalling the
    recommendations made by it which in turn had the effect
H   of limiting the number of vacancies to those originally
     K. LAKSHMI v. STATE OF KERALA & ORS.             585


notified. The proposed utilisation of four vacancies did     A
not ipso facto add to the number of already notified. The
addition was contingent upon the Government agreeing
to exercise its power under Rules 39. Since the
Government did not and could not possibly exercise the
said power as a result of the quashing of the marks          B
awarded by way of moderation the proposed addition of
the vacancies to the number already notified became
clearly infructuous. The High Court could and had rightly
recalled the recommendations in the light of the said
subsequent development. [Para 13] [594-E-H; 595-A-F]         c
      1.2. The power vested in the Government under Rule
39 could not have been invoked for filling up the
vacancies which had not been advertised and which had
occurred after the issue of the initial advertisement much
                                                             0
less could that be done for purposes of protecting the
service of someone who had found a place in the merit
list on account of additional marks given to him and who
was bound to lose that place by reasons of the judgment
of the Court. [Para 18] [597-E-F]
                                                             E
   · 1.3. The number of vacancies notified for recruitment
remained limited to six and did not get increased to ten
as the condition precedent for such increase had failed
not only because no decision was taken by the
Government to invoke its power under Rule 39 but also        F
because even if a decision had been taken the same
would have had no effect in the face of the judgment in
J's case. Besides the power vested in the Government
was not exercisable so as to utilise subsequent
vacancies for the purpose of saving someone who had          G
no legitimate right to continue even after being removed
from the merit list. [Para 19] [597-G-H; 598-A-B]
    1.4. There is no legal or equitable right in favour of
the appellant to claim one of the four vacancies that were
proposed to be added in terms of the recommendation          H
    586    SUPREME COURT REPORTS              [2012) 3 S.C.R.


A   made by the High Court, even assuming that the
    appellant could urge before this Court a point which had
    never been urged before the High Court. [Para 20) [598-
    cr
B     Rakhi Ray v. High Court of Delhi (2010) 2 SCC 637:
  2010 (2) SCR 239; Hoshiar Singh v. State of Haryana 1993
  Supp (4) SCC 377; State of Haryana v. Subhash Chander
  Marwaha (1974) 3 SCC 220: 1974 (1) SCR 165; Shankarsan
  Dash v. Union of India (1991) 3 SCC 47: 1991 (2) SCR 567;
C UPSC v. Gaurav Dwivedi (1999) 5 SCC 180: 1999 (3) SCR
  64; All India SC & ST Employees' Association v. A. Arthur
  Jeen (2001) 6 SCC 380: 2001 (2) SCR 1183; Food
  Corporation of India v. Bhanu Lodh (2005) 3 SCC 618: 2005
    (2) SCR 350 - referred to.

D      1.5. It cannot be said that even if the number of
  vacancies is taken to be limited to six, he was entitled to
  be appointed against one of the unfilled vacancies meant
  for reserved category candidates. Firstly, because there
  is no foundation laid in the writ petition filed by the
E appellant nor was any such point ever raised before the
  High Court. The result is that the unfilled vacancies meant
  for reserved category candidates and those that have
  become available in the merit category after the issue of
  the initial recruitment notification have already been
F notified. The appellant participated in the fresh selection
  process initiated by the High Court like many others who
  were eligible to apply against the vacancies in the open
  merit and the reserved category. It is, therefore, neither
  proper nor feasible at this stage for this Court to interfere
G with the ongoing selection process. The appellant it goes
  without saying would get a fair chance like every other
  eligible candidate to compete for an appointment. [Para
  21) [598-D-H]

      Umesh Chandra Shukla v. Union of India and Ors. (1985)
H 3 SCC 721: 1985 (2) Suppl. SCR 367 - referred to.
     K. LAKSHMI v. STATE OF KERALA & ORS.                  587

                     Case Law Reference:                          A

     1985 (2) Suppl. SCR 367 ·Referred to           Para 5

     2010 (2) SCR 239            Referred to        Para 15

     1993 supp (4) sec 377       Referred to        Para 16       B
     1974 (1) SCR 165            Referred to        Para 17

     1991 (2) SCR 567            Referred to        Para 17

     1999 (3) SCR 64             Referred to        Para 17
                                                                  c
     2001 (2) SCR 1183           Referred to        Para 17

     2005 (2 ) SCR 350           Referred to        Para 17

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2511 of 2012.                                                     D
    From the Judgment & Order dated 08.03.2011 of the High
Court of Kerala at Ernakulam in Writ Petition No. 1856 of 2010.

     P.P. Rao, PU Dinesh, Jaimon Andrews, Robin V.S., Sindu
TP, Naresh Kumar, T.G. Narayanan Nair, KN Madhu                   E
Soodhanan, Utsav Sidhu, Apeksha Sharan, Abhimanyu Tiwari,
P.A. Noor Muhamed, Giffara S., John Mathew, M.T. George,
K. Rajeev for the appearing parties.

    The Judgment of the Court was delivered by                    F
    T.S. THAKUR, J. 1. Leave granted.

     2. Recruitment to public services often gets embroiled in
legal complications and resultant litigation consequently delaying
the process of filling up of the vacancies, a feature hardly G
conducive to public interest. What is disturbing is that
recruitment process for appointment to the District Judiciary in
the States is also not immune to this phenomenon no matter
recruitments are made in consultation with the High Court on
the administrative side and at times monitored by them. The H
    588     SUPREME COURT REPORTS                 [2012) 3 S.C.R.


A present appeal that arises out of an order passed by the High
  Court of Kerala is one such case where the recruitment process
  for the post of District and Sessions Judges in the Kerala State
  Higher Judicial Service was the subject-matter of multiple
  rounds of litigation. The genesis of the present lis lies in a
B notification issued by the High Court of Kerala for appointment
  to the six vacancies in the cadre of District and Sessions
  Judges by direct recruitment from the Bar. Notification dated
  16th April, 2007 inviting applications against those vacancies
  was followed by a written examination conducted in October
c 2007 in which as against 960 candidates who applied, only 443
  candidates actually took the written examination conducted
  between 27th to 29th October, 2007. Surprisingly enough only
  seven candidates qualified in the written examination by
  securing the minimum qualifying marks specified in paragraph
D 4 of the recruitment Notification. Out of the seven, one belonged
  to Scheduled Castes category, three to OBCs and the
  remaining candidates were from the open merit category.

       3. Looking to the number of candidates who had qualified
  for interview, the Recruitment Committee comprising five
E senior-most Judges of the High Court was of the view that
  sufficient number of candidates may not be available to fill up
  the notified vacancies. The Committee, therefore, resolved to
  award 20 marks by way of moderation in all the three papers
  of the written examination to all the candidates who appeared
F for the examination so that a larger number of candidates
  qualified in the written examination and became eligible for
  consideration. Merit list after giving such benefit was prepared
  and approved by the Recruitment Committee. The result was
  that against the seven candidates who had previously qualified,
G 45 candidates became eligible for the viva-voce examination.
  Two of these candidates namely, Muhammed Raees M and
  Minu Mathews were, however, excluded from the selection
  process on the ground that they had secured employment
  during the interregnum. The exclusion was successfully
H
     K. LAKSHMI v. STATE OF KERALA & ORS.                   589
                [T.S. THAKUR, J.]

challenged by the said candidates who were then permitted to       A
participate in the viva-voce examination as well.

      4. Interviews for the eligible candidates were held in
December 2008 and based on the merit so determined, the
High Court published a final selection list containing the names
                                                                   8
of 29 candidates. The select list was prepared by excluding
candidates who were less than 35 years of age or more than
45 years as on 1st January, 2007. The age bar, it is noteworthy,
was introduced by the amending Kerala Sate Higher Judicial
Services Rules which amendment came in June 2008 i.e. after
the selection process has commenced. Those who were                c
excluded from consideration on the basis of the amended rules
challenged their exclusion in Writ Petition(C) No.2021 of 2009
and connected petitions which were allowed by a Division
Bench of the High Court of Kerala with a direction that the
selection process be conducted in accordance with the rules        D
as the same were on the date of the issue of the notification
inviting applications from the eligible candidates. A revised
merit list was accordingly issued comprising 45 names.

      5. The Recruitment Committee considered the revised          E
merit list and found that two open category candidates and one
reserved category candidate who stood appointed shall have
to be elbowed out of service in view of the revised select list.
The Committee appears to have suggested a solution that
would avoid such a situation. The High Court on the basis of       F
the recommendations made by the Committee recommended
to the Government to invoke its power under Rule 39 of the K.S.
& S.S.R. to protect the said three candidates whose services
were otherwise very satisfactory. The recommendation
suggested utilisation of four vacancies that had occurred          G
subsequent to the issue of the recruitment Notification in
addition to the six already notified. The recommendation sent
to the State Government accordingly contained names of nine
candidates while one was kept unfilled in view of the pendency
of Special Leave Petition (C) No.4203 of 2009. With the
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    590       SUPREME COURT REPORTS                    [2012] 3 S.C.R.


A dismissal of the Special Leave Petition, the said slot was
  recommended to be filled up by appointing Muhammed Raees
  M. against 10th vacancy. Writ Petition (C) Nos.16206 of 2010
  and 16207 of 2010 were then filed by C. Jayachandran and
  Minu Mathews whereby the award of grace marks by way of
8 moderation to other three candidates included in the said list
  was challenged. The said petitions were finally allowed by the
  High Court of Kerala by its order dated 13th September, 2010
  holding that the award of grace marks by way of moderation
  was not legally permissible and was contrary to the decision
c of this Court in Umesh Chandra Shukla v. Union of India and
  Ors. (1985) 3 SCC 721. The High Court observed:

          "
        .The present two writ petitioners were among the seven
         successful candidates in the written examination who
D        secured the cut off marks in each of the papers as
         stipulated by the notification. In view of the decision of the
         selection committee to award moderation though the writ
         petitioners still continued to be the successful candidates
         in the written examination, many more candidates
E        artificially became eligible for being called for the viva-voce
         resulting in a heavier competition for the petitioners at the
       . second stage of selection process, i.e. viva-voce. In the
         above extracted passage of the judgment (1985) 3 sec
         721, the Supreme Court held that the candidates who
F        secured the minimum qualifying marks in the written
         examination acquire the right to be included in the list of
         the candidates to be called for viva-voce examination and
         such a right cannot be defeated by enlarging the said list
         including certain other candidates who are otherwise
G        ineligible."

        6. The High Court accordingly declared the grant of
    moderation marks and all steps taken pursuant to the said
    decision bad in law. The High Court observed:

H         "In 'the result, we are of the opinion that the decision of the
                                 '·
     K. LAKSHMI v. STATE OF KERALA & ORS.                       591
                [T.S. THAKUR, J.]
     Selection Committee to grant moderation is unsustainable           A
     in law. Therefore, all further steps pursuant to the said
     decision would be unsustainable. The resultant situation is
     that only the seven candidates who were initially found
     eligible on the basis of their having secured the cut off
     marks in the examination should have been subjected to             B
     the viva-voce examination and an appropriate decision
     regarding their suitability to fill up the originally advertised
     6 posts should have been taken by the 1st respondent in
     accordance with law."

     7. In compliance with the above direction, the merit list was      C
revised again and the appellant placed at serial no.6 in the open
merit category. Since there were only three vacancies in the
said category which had been allotted to three candidates with
higher merit than the appellant, the appellant could not be
appointed. Out of three vacancies meant for reserved category           D
candidates one was filled up while the remaining two vacancies
meant for OBC candidates remained unfilled for want of
candidates in the said category.

     8. It was in the above backdrop that Writ Petition No.             E
20683 of 2009 filed by the appellant to challenge the selection
process came up for hearing before a Single Bench of the High
Court of Kerala and was dismissed by a short order stating that
since the appellant was not one of the candidates who figured
in the list of seven successful candidates qualified for
                                                                        F
consideration there was no question of issuing any direction
for appointment. The learned Single Judge observed:

    " ................ The selection now stands narrowed down to
    only seven persons. The petitioners in these writ petitions
    are not among them. That being so, there is no point in             G
    considering these writ petitions on merits. Accordingly,
    they are closed leaving open the other contentions in these
    writ petitions, which have not been considered by the
    Division Bench in Jayachandran's case (supra) to be
                                                                        H
    592      SUPREME COURT REPORTS                    (2012] 3 S.C.R.

A         raised and agitated appropriately, if occasion arises in
          future."

          9. Aggrieved by the above order the appellant filed a writ
  appeal before the Division Bench of the High Court which too
  failed and was dismissed by the High Court. The High Court
8
  was of the view that the contention urged in support of the
  challenge to the selection process did not have any foundation
  in the pleadings of the parties and even assuming that the
  challenge on the grounds urged before it was maintainable the
  fact that the writ petition had itself been filed nearly two years
C from the date of the issue of the notification was sufficient for
  the High Court to decline interference. The present appeal
  questions the correctness of the above order before us.

        10. Appearing for the appellant Mr~ P.U. Dinesh, learned
D counsel strenuously argued that the High Court had failed to
  consider the effect of the order passed by it in Writ Petition
  No.16206 of 2010 in Jayachandran's case. It was contended
  that the High Court had by the said decision clearly directed
  that ten vacancies had to be filled up from out of seven
E candidates found eligible in terms of the select list. Heavy
  reliance was, in support of that contention, placed by the learned
  counsel upon the following passage appearing in the said
  judgment:

          "However, in view of the subsequent decision of the 1st
F         respondent to fill up 10 posts, the 1st respondent may now
          proceed with the selection from out of the 7
          abovementioned candidates in accordance with law by
          recasting the select list. In view of the fact that some of the
          10 posts sought to be filled up are required to be filled up
G         by candidates belonging to reserved categories, if on such
          an exercise any of the vacancies of the abovementioned
          10 posts sought to be filled up cannot be filled up for lack
          of a suitable candidate, the respondents should now resort
          to the procedure contemplated under RLJle 1S(a} of the K.S.
H         & S.S.R. It goes without saying that it should be open to
      K. LAKSHMI v. STATE OF KERALA & ORS.                     593
                 [T.S. THAKUR, J.)
     the respondents to prescribe such cut off marks as the           A
     minimum qualifying marks in such limited recruitment as
     they deem fit and proper in the circumstances. Both the
     writ petitions are allowed as above."

      11. In as much as the High Court had remained oblivious
                                                                      8
of the above direction it had according to the learned counsel
fallen in a palpable error that deserved to be corrected.
Alternatively, it was contended that even if the number of
vacancies to be filled up were restricted to only six the appellant
was entitled to an appointment against one out of the two
unfilled vacancies meant for the reserved category candidates         C
having regard to the provisions of the Rules which according
to the learned counsel entitled him to such an appointment by
diversion of the unfilled vacancies to the open merit category.

      12. Mr. P.P. Rao, learned counsel for the respondents, on       D
the other hand, argued that the High Court was perfectly
justified in dismissing the writ petition filed by the appellant as
none of the grounds which were set out in the writ petition were
found to have any merit. He drew our attention to the writ petition
filed by the appellant and the grounds on which the selection         E
process was challenged to contend that the challenge urged
in support of the present appeal was never pressed into
service or urged before the High Court. It was not, therefore,
argued Mr. Rao, open to the appellant to make out a new case
in his favour before this Court on which the High Court had no        F
occasion to express any opinion. It was further contended that
reliance upon the order passed by the High Court in
Jayachandran's case was misplaced for the direction issued
by the High Court was limited to filling up of the vacancies "in
accordance with law". This implied that no appointment against        G
the available vacancies could be made if the same were not
legally permissible. It was argued that subsequent to the
judgment of the High Court in Jayachandran's case, the High
Court had passed a Full Court resolution by which the
recommendations made earlier to the Government for filling up
                                                                      H
    594      SUPREME COURT REPORTS                     (2012) 3 S.C.R.


A   of the four vacancies that had occurred after issue of the
    recruitment notification by resort to Rule 39 of the K.S. & S.S.R.
    Rules was withdrawn. Copy of the said resolution in the
    consequent letter issued by the High Court was also placed on
    record by the learned counsel, in support of the submission that
B   after the quashing of the moderation in Jayachandran's case
    there was no room left for filling up of the four additional
    vacancies by taking resort to Rule 39 of the Rules mentioned
    above. That was so, for the obvious reason, that the candidates
    for whose benefit the said recommendation had been made
C   had gone out of service as a consequence of the judgment of
    the High Court in Jayachandran's case. There was, therefore,
    neither any need nor any occasion for the Government to
    invoke this power under Rule 39 of the Rules as recommended
    by the High Court. The net result then was that the number of
    vacancies required to be filled up continued to be only six, three
0
    out of which were to go to open merit candidates while the
    remaining would go to the candidates in the reserved category.

          13. The short question that falls for determination in the
    above backdrop is whether the number of vacancies to be filled
E   up was six as claimed by the High Court or ten as claimed by
    the appellant. While it is not disputed that the initial notification
    confined itself to filling up of six vacancies only, confusion
    relating to the said number arose on account of the High Court
    recommending invocation of Rule 39 by the Government to
F   avoid a situation where the candidates who had already been
    appointed pursuant to the selection process had to go out of
    service on account of the Court directing preparation of a
    revised merit list on the basis of the unamended Rules. It is
    common ground that the vacancies_ that had arisen after the
G   issue of the Notification were sought to be filled up only with
    the solitary purpose of somehow saving the three c.andidates
    from ouster who were bound to lose their jobs on account of
    the re-casting of the merit list. All that the High Court intended
    to recommend to the Government was that four vacancies that
H   were available in the cadre, though the same had arisen after
     K. LAKSHMI v. STATE OF KERALA & ORS.                    595
                [T.S. THAKUR\ J.]
the issue of the Recruitment Notification, could be utilised by      A
the Government if it invoked its power under Rule 39. The
candidates facing ouster could then be continued as an
exception to the general rule. It is also beyond dispute that the
said recommendations could not have been accepted once the
award of additional marks by way of moderation was struck            B
down by the High Court in Jayachandran's case. The inevitable
consequence flowing from that judgment was that anyone who
had found place in the merit list only because of the benefit of
moderation would have to lose that place and go out of the list.
Once that happened the question of retaining the services of         c
the three candidates by invocation of powers vested in the
Government under Rule 39 did not arise. The High Court was
in the light of the subsequent development justified in recalling
the recommendations made by it which in turn had the effect
of limiting the number of vacancies to those originally notified.
                                                                     0
Mr. Rao was, therefore, right in contending that the proposed
utilisation of four vacancies did not ipso facto add to the number
of already notified. The addition was contingent upon the
Government agreeing to exercise its power under Rules 39.
Since the Government did not and could not possibly exercise
the said power as a result of the quashing of the marks              E
awarded by way of moderation the proposed addition of the
vacancies to the number already notified became clearly
infructuous. The High Court could and had rightly recalled the
recommendations in the light of the said subsequent
development.                                                         F

     14. There is another aspect to which we may advert at this
stage and that relates to the question whether the Goverf1ment
could at all exercise the powers vested in it under Rule 39 in a
manner that would have had the effect of depriving candidates        G
otherwise eligible for appointment against the said vacancies
from competing for the same. Rule 39 reads as under:

          "Notwithstanding anything contained in these rules or
     in the Special Rules or in any other Rules or
     Government Orders the Government shall have power to            H
    596      SUPREME COURT REPORTS                  [2012] 3 S.C.R.


A         deal with the case of any person or persons serving in a
          civil capacity under the Government of Kerala or any
          candidate for appointment to a service in such manner a
          may appear to the Government to be just and equitable:

                 Provided that where such rules or orders are
8
          applicable to the case of any person or persons, the case
          shall not be dealt with in any manner less favourable to him
          or them than that provided by those rules or orders.

                This amendment shall be deemed to have come into
c         force with effect from 17.12.1958."

       15. The legal position regarding the power of the
  Government to fill up vacancies that are not notified is settled
  by several decisions of this Court. Mr. Rao relied upon some
0 of those decisions to which we shall briefly refer. In Rakhi Ray
  v. High Court of Delhi (2010) 2 SCC 637, this Court declared
  that the vacancies could not be filled up over and above the
  number of vacancies advertised as recruitment of the
  candidates in excess of the notified vacancies would amount
E to denial of equal opportunity to eligible candidates violative of
  Article 14 and 16(1) of the Constitution of India. This Court
  observed:

       "It is settled law that vacancies cannot be filled up over and
  above the number of vacancies advertised as recruitment of the
F candidates in excess of the notified vacancies is a denial being
  violative of Articles 14 and 16(1) of the Constitution of India."

        16. In Hoshiar Singh v. State of Haryana 1993 Supp (4)
  SCC 377, also this Court held that appointment to an additional
G post would deprive candidates who were not eligible for
  appointment to the post on the last date of submission of the
  applications mentioned in the advertisement and who became
  eligible for appointment thereafter or the opportunity of being
  considered for such appointment. This Court observed:

H         'The appointment on the additional posts on the basis of
      K. LAKSHMI v. STATE OF KERALA & ORS.                   597
                 [T.S. THAKUR, J.]
     such selection and recommendation would deprive                A
     candidates who were not eligible for appointment to the
     posts on the last date for submission of applications
     mentioned in the adv~rtisement and who became eligible
     for appointment thereafter, of the opportunity of being
     considered for appointment on the additional posts."           8

     17. In State of Haryana v. Subhash Chander Marwaha
(1974) 3 SCC 220, this Court held that the Government had
no constraint to make appointments either because there are
vacancies or because a list of candidates has been prepared
and is in existence. So, also this Court in Shankarsan Dash         C
v. Union of India (1991) 3 SCC 47, UPSC v. Gaurav Dwivedi
(1999) 5 SCC 180, All India SC & ST Employees' Association
v. A. Arthur Jeen (2001) 6 SCC 380 and Food Corporation of
India v. Bhanu Lodh (2005) 3 SCC 618, held that mere
inclusion of a name in the select list for appointment does not     D
create a right to appointment even against existing vacancies
and the State has no legal duty to fill up all or any of the
vacancies.

     18. In the light of the above pronouncements the power         E
vested in the Government under Rule 39 (supra) could not have
been invoked for filling up the vacancies which had not been
advertised and which had occurred after the issue of the initial
advertisement much less could that be done for purposes of
protecting the service of someone who had found a place in
                                                                    F
the merit list on account of additional marks given to him and
who was bound to lose that place by reasons of the judgment
of the Court.

     19. The upshot of the above discussion is that the number
of vacancies notified for recruitment remained limited to six and   G
did not get increased to ten as the condition precedent for such
increase had failed not only because no decision was taken
by the Government to invoke its power under Rule 39 but also
because even if a decision had been taken the same would
have had no effect in the face of the judgement in                  H
    598      SUPREME COURT REPORTS                   [2012] 3 S.C.R.

A Jayachandran's case. Besides the power vested in the
  Government was not exercisable so as to utilise subsequent
  vacancies for the purpose of saving someone· who had no
  legitimate right to continue even after being removed from the
  merit list.
B
       20. In the light of the above discussion paragraph 33 of
  the judgment in Jayachandran's case does not come to the
  rescue of the appellant's to support his claim for appointment.
  We fail to see any legal or equitable right in favour of the
  appellant to claim one of the four vacancies that were proposed
C to be added in terms of the recommendation made by the High
  Court, even assuming that the appellant could urge before us
  a point which had never been urged before the High Court.

         21. That brings us to the second limb of the submission
D   of Mr. Dinesh that even if the number of vacancies is taken to
    be limited to six, he was entitled to be appointed against one
    of the unfilled vacancies meant for reserved category
    candidates. That submission, in our opinion, needs notice only
    to be rejected. Firstly, because there is no foundation laid in
E   the writ petition filed by the appellant nor was any such point
    ever raised before the High Court. The result is that the unfilled
    vacancies meant for reserved category candidates and those
    that have become available in the merij category after the issue
    of the initial recruitment notification have already been notified.
F   The appellant, it is not in dispute, has participated in the fresh
    selection process initiated by the High Court like many others
    who were eligible to apply against the vacancies in the open
    merit and the reserved category. It is, therefore, neither proper
    nor feasible at this stage for this Court to interfere with the
G   ongoing selection process. The appellant it goes without saying
    would get a fair chance like every other eligible candidate to
    compete for an appointment. In the result this appeal fails and
    is hereby dismissed but in the circumstances without any
    orders as to costs.

H N.J.                                           Appeal dismissed.