SMT. K. LAKSHMI versus STATE OF KERALA & ORS.

Citation: [2012] 3 S.C.R. 581 · Decided: 27-02-2012 · Supreme Court of India · Bench: T.S. THAKUR · Disposal: Dismissed

Judgment (excerpt)

[2012] 3 S.C.R. 581 
SMT. K. LAKSHMI 
v. 
STATE OF KERALA & ORS. 
(Civil Appeal No. 2511 of 2012) 
FEBRUARY 27, 2012 
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.] 
A 
B 
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 

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