IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 WP(C).No. 29488 of 2009(E) --------------------------------------- PETITIONER(S): ------------------------ SAJITHA V., VADAKKETHALA HOUSE, EZHUVATHIRUTHI, P.O.PONNANI, MALAPPURAM DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): -------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 3. MS.SINI V.S., HIGHER SECONDARY SCHOOL TEACHER-SOCIOLOGY, GOVERNMENT HIGHER SECONDARY SCHOOL, MARANCHERY, MALAPPURAM DISTRICT. R1 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2011, THE COURT ON 23/05/2011 DELIVERED THE FOLLOWING: sts WP(C)NO.29488/2009 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE RELEVANT PORTION OF NOTIFICATION PUBLISHED IN EXTRA ORDINARY GAZETTE DATED 30/04/2007 AND APPEARED IN MATHRUBHUMI THOZHILVARTHA DATED 12/05/2007. P2 COPY OF THE RANKED LIST PUBLISHED BY THE 2ND RESPONDENT FOR THE POST OF HSST- SOCIOLOGY (JUNIOR) PURSUANT TO EXHIBIT P1. P3 COPY OF THE RELINQUISHMENT APPLICATION DATED 01/08/2009 SUBMITTED BY MS. SARITHA.M.V. (2ND RANK HOLDER IN EXHIBIT P2) TO THE 2ND RESPONDENT. P4 COPY OF THE RELINQUISHMENT APPLICATION DATED 10/06/2009 SUBMITTED BY MR.SUNDARARAJ (3RD RANK HOLDER IN EXHIBIT P2) TO THE 2ND RESPONDENT. P5 COPY OF THE RELINQUISHMENT APPLICATION DATED 30/07/2009 SUBMITTED BY 3RD RESPONDENT BEFORE THE 2ND RESPONDENT. P6 COPY OF THE RANKED LIST FOR THE POST OF HSST SANSKRIT (JUNIOR). P7 COPY OF THE APPOINTMENT CHART P8 COPY OF THE APPOINTMENT CHART RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.29488/2009-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23rd day of May, 2011 J U D G M E N T The petitioner seeks for a direction to the Public Service Commission to issue advice memo after accepting Exts.P3 and P4 applications for relinquishment submitted by rank holders 2 and 3 in Ext.P2 ranked list. 2. The Public Service Commission issued a notification as evident from Ext.P1 dated 30/04/2007 to fill up the post of Higher Secondary School Teacher-Sociology (Junior) against No Candidate Available vacancy of Scheduled Caste (shortly-NCA vacancy). Ext.P2 is the copy of the ranked list thus published and the petitioner is rank No.4 therein. 3. The first rank holder Miss Ambika Bai T. was issued advice memo by Public Service Commission to fill up the said vacancy. But she could not join service which resulted in a Non Joining Duty vacancy (shortly-NJD vacancy) being reported. Ext.P3 is the relinquishment letter said to have been given by the second rank holder on 01/08/2009 and Ext.P4 which is dated 10/06/2009 is said to be the relinquishment letter given by rank No.3. It is the contention of the petitioner therefore that on acceptance of Exts.P3 and P4, the petitioner is liable to be advised. It is W.P.(C). No.29488/2009 -:2:- also contended that the fifth respondent has also forwarded a relinquishment letter as per Ext.P5 which was accepted by the Public Service Commission. 4. The Commission has filed a counter affidavit, the petitioner has filed a reply affidavit and the Commission has filed an additional counter affidavit. 5. The contentions, of the P.S.C. in a nut shell are the following:- The ranked list for H.S.S.T-Sociology (Junior) was brought into force with effect from 15/10/2004. While working out the rotation for the post on 03/07/2006, the turn MR 1 4 SC became NCA. In terms of amendment of the Rules, namely, Rules 14 and 15 of Kerala State & Subordinate Service Rules, a selection notification to fill up the NCA vacancy was issued. The ranked list was brought into force on 04/04/2008 consisting of 7 candidates. Smt.Ambika Bai T., was advised for appointment on 06/05/2008. It is their contention that once the said candidate has been advised, the ranked list has been cancelled. It is also pointed out that the relinquishment letters submitted by rank Nos.2 and 3 were rejected by the Commission as the question of acceptance of the same does not arise at all. 6. The NJD vacancy of first rank holder which was reported as per request dated 29/10/2008 was received in the office on 03/11/2008. A new W.P.(C). No.29488/2009 -:3:- ranked list was brought into force on 31/12/2007 and so a substitute was advised on 10/06/2009 from the new ranked list. The contention raised by the petitioner in the reply affidavit is that the substitute who is said to have been advised is the same candidate, viz., Smt.Ambika Bai T., who did not join even when she was advised for the second time. Hence, it is pointed out that nobody has been appointed to satisfy the NCA vacancy notified as per Ext.P1. It is also contended that Public Service Commission has been filling up the vacancies from the NCA list even when the candidates who were advised did not join and Exts.P6 and P7 are relied upon in that context, which relates to appointments of HSST Sanskrit (Junior). 7. Apart from reiterating the contentions in the counter affidavit, it is explained in the additional counter affidavit that the ranked list to the post of H.S.S.T Sanskrit (Junior) was published on 20/01/2005 and it was cancelled on 21/01/2008. New ranked list for the post has not been finalised. The NCA ranked was finalised on 28/08/2008 and turns were satisfied by advising candidates on 09/01/2009. As the general ranked list for the post was not in existence when the NJD vacancies were reported, the same were honoured from NCA ranked list itself on 08/04/2009. It is W.P.(C). No.29488/2009 -:4:- submitted that as far as the ranked list for selection and appointment of H.S.S.T Sociology Juniors are concerned, the facts are entirely different. 8. Shri Kaleeswaram Raj, appearing for the petitioner submitted that, it is evident from Ext.P2 ranked list itself and the notification therein that the ranked list is alive and valid until candidates advised and appointed against the vacancies earmarked for the same community. It is therefore submitted that the advice of the first ranked candidate alone will not result in the ranked list being cancelled as no appointment has taken place. It is pointed out by the learned counsel that the NCA notification is issued for satisfying the turn of the community and without making the appointment it cannot be said that the turn has been satisfied. It is therefore submitted that the relinquishment letters of rank holders 2 and 3 ought to have been accepted. 9. The learned counsel for the P.S.C., Shri P.C. Sasidharan submitted that the relinquishment submitted is violative of Rule 18(ii) of Rules of Procedure and reliance is placed on the decision of this Court in Balakrishnan v. Public Service Commission [1994 (1) KLT 490] to contend that the relinquishment should be before the date of receipt of requisition for advice. It is further submitted by relying upon the principles W.P.(C). No.29488/2009 -:5:- of the Apex Court in Nair Service Society v. District Officer, Kerala Public Service Commission [2003 (3) KLT 1126 (SC)] that the NJD vacancy could not have been satisfied from the NCA ranked list since a new list has come into force and the NCA ranked list itself has been cancelled. 10. First I will consider the question whether the relinquishment submitted by rank holders 2 and 3 could have been accepted by the Public Service Commission. 11. Rule 18 (ii) of the Public Service Commission Rules of Procedure shows that a candidate included in the ranked list can relinquish his claim for appointment in writing in tune with the procedure prescribed therein on or before the date of receipt of requisition for advice based on which he/she is to be advised. Thereafter, the Commission will have to remove his/her name from the ranked list and advise another candidate according to the rules. It is evident therefore that the procedure provided under the Rule will have to be strictly complied with. This question was considered by the Division Bench in Balakrishnan's case [1994 (1) KLT 490] in paragraph (35). After evaluating the rule as amended, it was held that “as per the amended rule, such relinquishment is possible on or before the date of receipt of requisition for advice against the post which he is to be W.P.(C). No.29488/2009 -:6:- advised”. The facts of the case show that the relinquishment was received after the requisition of the appointing authority was received by Public Service Commission. It was held that the request could not have been accepted. Herein, the factual position is identical. The relinquishment given by rank holders 2 and 3 as per Exts.P3 and P4 are dated 01/08/2009 and 10/06/2009. Evidently, the same could not have been accepted by the Public Service Commission since the requisition was prior to that. In that view of the matter, the direction sought to accept Exts.P3 and P4 cannot be granted. 12. Then the only question is whether the NCA turn has been satisfied and whether the NJD vacancy could be filled up from the NCA ranked list. In Ext.P2 it is made clear that the ranked list which is brought into force on 04/04/2008 will be valid until candidates are advised and appointed. The question is whether the non acceptance of appointment of the candidate, even though she was advised, will advance the case of the petitioner. 13. Herein, some of the factors pointed out by the Commission in the counter affidavit and the additional counter affidavit are material. The original ranked list was brought into force on 15/10/2004 for the post of W.P.(C). No.29488/2009 -:7:- H.S.S.T (Junior) Sociology. The NCA ranked list was published on 04/04/2008. Rank No.1 was advised on 06/05/2008. A new ranked list was brought into force on 31/12/2007. Actually, it is a case where a Non Joining Duty vacancy has been reported to the Commission on 29/10/2008. The main ranked list has already expired and what was in operation is the NCA ranked list. The NJD vacancy was reported during the currency of the new ranked list and again a candidate was advised from the said ranked list for the said vacancy. It is clear from the statement filed by the Regional Deputy Director, Higher Secondary Education that, again the vacancy has been reported as NJD as per letter dated 18/12/2009. In this context, the principles stated by the Apex Court in Nair Service Society's case [2003 (3) KLT 1126 (SC)] will have some applicability. Therein, it was held that once the main list has exhausted, the supplementary list cannot have any application. The said question was considered in a slightly different context. The principle which is laid down therein is that the NJD vacancies in respect of Other Backward Community candidates cannot be filled up after the expiry or exhaustion of the main list. This was on the premise that only reservation candidates could be advised from the supplementary list which would violate 50% rule as no Open Community candidates could be W.P.(C). No.29488/2009 -:8:- advised. The view taken by this Court that NJD vacancies could be filled up, was reversed. For the purpose of this case, the principle that can be drawn from the above decision is that once the NCA ranked list has been operated upon and the vacancy has become a NJD vacancy, it cannot be filled up from the same NCA ranked list as a new ranked list is already in operation. The NCA ranked list was evidently for advising candidates from the Scheduled Caste community and one candidate was advised. On the basis of the advise, the Commission cancelled the ranked list as evident from the pleadings in the counter affidavit and the additional counter affidavit. Already a new ranked list was in existence which was in force from 31/12/2007. The NJD vacancy was reported during the validity period of the said ranked list on 29/10/2008. In that view of the matter, it can be seen that the steps taken by the Commission cannot be said to be illegal. The NCA ranked list has been cancelled. It cannot be revived. The vacancy has become a NJD vacancy also. 14. The contention that was forcefully raised by Shri Kaleeswaram Raj is that the NCA vacancy will have to be satisfied by appointing a candidate from the same community and the benefit to the community will be lost if the argument of the Public Service Commission is accepted. W.P.(C). No.29488/2009 -:9:- Evidently, the said contention cannot be accepted. As explained by the learned counsel for the Public Service Commission Shri P.C.Sasidharan, the said turn of the community will not be lost as there is a cycle of appointments. It will have to be filled up in course of time even though from a subsequent ranked list. 15. Thus, it can be seen that the turn of the community will not be lost as contended by the learned counsel for the petitioner. 16. Herein, in the light of the above legal position, it can be seen that the writ petitioner is not entitled for the reliefs sought for in the writ petition. The rank holders 2 and 3 who are supposed to be advised if the ranked list was operated upon are above the petitioner. Their relinquisments cannot be legally accepted also. In that view of the matter also no reliefs can be granted to the petitioner. Therefore, the writ petition is dismissed. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms