Appointing Authority Can Decide Not To Fill Up Existing Vacancies On Reasonable And Genuine Grounds: Kerala High Court

The Division Bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar observed:

“It is well-settled law that an appointing authority may for good and sufficient reasons take a decision not to fill up the existing vacancies even if a valid rank list is in force. The appointing authority has every right to decide that a particular number of vacancies should not be filled on reasonable and genuine grounds.”

The Court added that such an action needs to be challenged only if it is arbitrary, unreasonable or manifestly illegal.

The Court was considering State Government's and PSC's challenge against the order of Kerala Administrative Tribunal to redetermine the cadre strength of Kerala Administrative Service (KAS) Junior Time Scale (Trainees) as per Rule 4 read with Rule 18 of the Kerala Administrative Service Rules, 2018 (KAS Rules) and make appointment to the remaining vacancies. In the original application before the Tribunal, candidates whose names was included in the rank list of KAS Junior Time Scale (Trainees) pointed out that the order of the Government fixing cadre strength at 105 was in violation to the rules.

Rule 4 of the Rules says that the cadre strength at the entry level in KAS shall be limited to 10% of the sanctioned strength of the 2^nd gazette post in the departments and equivalent post in the common categories of posts in all departments as mentioned in Schedule I. The posts that are identified for cadre strength is mentioned in Tables 1-4 of Schedule II. Originally 1258 posts were included in Table I in Schedule II. Later, it was changed to 1206 by Kerala Administrative Service (KAS) Amendment Rules, 2019. In the explanation note to the amendment it was mentioned that the amendment was made to exclude certain posts that were inadvertently included in the KAS rules. The petitioners contended that the sanctioned strength should be 10% of 1206, that is 120.

The Government contended before the High Court that the government has only fixed 10% as the maximum limit and it has the power to fix cadre strength less than that. The Court noticed that the words “10% Gazetted posts so set apart” and concluded that 10% is fixed strength. Though, the Court observed that as per Rule 4(e), Government has the power to refix the cadre strength when additional posts are created, it said that it could be only done through amending the Rules.

The Court however decided that there is no need to interfere with the order fixing the strength at 25 as the Government had sufficient reason to do so. As per the submission of the Government, several 3^rd and 4^th level gazette posts were included in Table I of Schedule II. Further, certain other anomalies were also found in Schedule I. The Government said that it was intending to amend the Table, but it is a time-consuming process. The Court said that when Rule 4 says that the entry level KAS post is a 2^nd Gazetted post, then if the Schedule which is a subordinate part of the Rule contains certain categories of post which do not conform to that, then the appointing authority can proceed as per the main clause.

Accordingly, the petitions were allowed.

Case No: OP (KAT) No. 14 of 2024 and Connected Cases

Case Title: State of Kerala and Another v Jayesh K. and Others

Citation: 2025 LiveLaw (Ker) 265