IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 WP(C).No. 35315 of 2009(H) -------------------------- PETITIONER(S): --------------- SHAJI YOHANNAN, THEKKANATH HOUSE, NAYATHODE P.O., ANGAMALY (VIA), ERNAKULAM DIST, PIN 683 572. BY ADV. SRI.PRAMOD J.DEV SRI.V.P.JOLY RESPONDENT(S): --------------- 1. KERALA PUBLIC SERVICE COMMISSION, PATTAM, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY. 2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE,THRIKKAKKARA PANCHAYAT BUILDING, IST FLOOR, KAKKANAD, ERNAKULAM. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.SURENDRA MOHAN, J. ------------------------------------------- W.P.(C) No.35315 of 2009 ------------------------------------------- Dated this the 7th day of January, 2010 JUDGMENT The petitioner was a candidate for selection and appointment to the post of L.D.Clerks in Ernakulam District during September 2005. He had appeared for a written test conducted by the respondents. His complaint is that contrary to the prevailing practice, PSC had furnished the rank list limiting the number of candidates in the main list to only 795. According to him, the list was limited by adopting a cut off marks of 70%. Though there were a number of vacancies in various departments during the period of validity of the rank list, the ranked list was not expanded though the PSC was duty bound to expand the list which has since expired. The petitioner alleges that he would have got an appointment, had the list been expanded. At present, he is aged 39 years and is not qualified for W.P.(C)No.35315/2009 2 any further selection or appointment. 2. The petitioner had earlier filed O.P.No.33254 of 2008 praying for the expansion of the rank list and other consequential reliefs. The same was disposed of by Ext.P4 judgment directing the PSC to consider the claim of the petitioner in the light of the legal position. Thereafter, both the petitioners submitted a representation to the first respondent in 2009 and a personal hearing was conducted on 10.6.2009. The claim of the petitioner for appointment was rejected as per Ext.P6 proceedings. According to the petitioner, the impugned action of the first respondent is unsustainable and liable to be set aside. 3. The KPSC has filed counter affidavit disputing the contentions of the petitioner. According to the counter affidavit, the rank list was prepared by the PSC in the year 2005 on the basis of the requisition received. However, at the time of inviting applications, the number of vacancies could not be ascertained because the earlier list was in force and W.P.(C)No.35315/2009 3 appointments were being made from the said list. The Probability list was published on 19.12.2005, prior to the publication of the rank list. 815 candidates were included in the Main List and 271 candidates were included in the Supplementary List of the Probability list. The date of publication of the rank list is 1.1.2006 with a total of 798 candidates in the Main List and 250 candidates in the Supplementary List. Out of the said rank list, a total of 1060 candidates were advised against 1060 vacancies that were reported including NJD vacancies during the period of operation of the rank list. The rank list was exhausted on 29.10.2008. Thereafter, a new rank list was published on 1.1.2009 on the basis of a fresh Gazette notification dated 30.12.2006. A total number of 3639 candidates are included in the said rank list which is still in force. Since the fresh rank list is in force, it is submitted that no appointments could be made from the rank list, which has already expired. 4. The counsel for the petitioner contends that as W.P.(C)No.35315/2009 4 per Rule 14 of the Kerala PSC Rules of Procedure, hereinafter referred to as the 'Rules of Procedure' for short, the PSC had the duty to advice all the vacancies reported and pending and the vacancies that may be reported to them for the period during which the rank list is kept alive. However, the PSC has not done so in the present case. It is also pointed out that the petitioner had not been ranked only because of the fact that a method of short listing was adopted by the PSC on the basis of cut off marks, which was not permissible. It is the further case of the petitioner that the method of short listing could be adopted only in cases where the selection process included an interview also. It is contended that due to the illegal acts of the PSC, valuable rights of the candidates have been denied. They cannot be turned away on the ground that the period of validity of the list is over or that a new list has been published. According to the counsel, by Ext.P4 judgment, this Court had directed the KPSC to consider his case though even at that W.P.(C)No.35315/2009 5 point of time, the new list had come into force. However, Ext.P6 has not been considered properly. 5. The Standing Counsel for the PSC on the other hand refuted the contentions of the counsel for the petitioner by asserting that no cut off marks had been prescribed by the PSC to shorten the list. On the other hand, the rank list was prepared on the basis that it should be two times or three times the expected number of vacancies. While fixing the exact number of candidates to be included in the rank list, where a number of candidates have obtained same marks, the next higher mark is adopted to arrive at a manageable number of candidates to be listed. Such a procedure, according to the counsel, is permitted and has been approved and accepted by the Apex Court and this Court. It is further contended that the list was in operation for the full period of its validity and appointments were made until the list was exhausted. Thereafter, on the basis of a fresh notification, a fresh rank list has been published W.P.(C)No.35315/2009 6 which is remaining in force till this date. It is pointed out that the petitioner is a person who was not even ranked and he is not able to state whether he would have been ranked even if the list had been expanded. 6. I have heard Mr.Pramod J Dev, counsel for the petitioner and also the Standing Counsel for the KPSC. I have also considered the rival contentions anxiously. 7. The petitioner has filed the Writ Petition on the assumption that a cut off marks of 70 had been adopted by the PSC for preparing the rank list of candidates. However, this fact is disputed by the PSC. The procedure of shortening of the list is adopted for limiting the number of candidates ranked to two or three times the expected number of vacancies. The procedure adopted for short listing was not on the basis of any cut off marks, but only on the basis of the vacancies that are anticipated. The question as to whether the PSC was authorised to adopt the method of short listing, had come up for consideration before a Full Bench of this Court in the decision reported in W.P.(C)No.35315/2009 7 Ravidas v PSC (2009(2) KLT 295). In the said decision, this Court has noticed that such short listing is permitted by circulars issued by the PSC. Though the earlier circular had stipulated that the short listed rank list should contain three times the number of vacancies reported and advised from the previous ranked list, the said stipulation is not insisted upon by the present circular dated 1.12.2003. As per law, the Commission has to decide the number to be included in each case considering the number of vacancies reported, number of candidates advised from the previous list, nature of the posts and chances of occurrence of vacancies. Following the stipulations in the said circular the short listing was done in the present case. Regarding the adoption of cut off marks, this Court has held as follows: “In the said circular, it is also stipulated that where the Commission decides to include a particular number of candidates who have secured the top marks in the main list, if the desired number of candidates cannot be obtained on the basis of the cut off marks and if the next lower range of marks is taken, then the W.P.(C)No.35315/2009 8 number of candidates would exceed the number decided upon by the Commission, then the nearest number in the higher range of marks alone shall be considered. By way of illustration, it is stated that if the Commission decides to include 100 candidates in the main list and while preparing the list there are only 95 candidates in a particular range of marks, the range of marks is to be lowered in order to reach 100 candidates. But if on lowering the range of marks, the number reaches 110, that is, above 100, the nearest number, that is 95, is reckoned as the number of candidates to be included in the main list.” 7. In view of the above authoritative pronouncement of the Full Bench, the procedure adopted by the KPSC for shortening the rank list in the present case, cannot be found fault with. 8. The further contention of the petitioner is that Rule 14 of the Rules of Procedure mandates that all vacancies arising during the period of validity of the rank list should be filled up from that list and that the PSC was duty bound to advise all such existing vacancies. However, as rightly pointed out by the KPSC, as per Rule 13 of the Rules of Procedure, the period of validity of the ranked list is one year from the W.P.(C)No.35315/2009 9 date on which it was brought into existence provided that the said list would 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. Therefore, the PSC was entitled to invite applications and publish a fresh rank list after the expiry of the one year period without waiting for the period of three years to expire. The above procedure has also been approved by the Full Bench Ravidas v Public Service Commission (supra) at page 330. Further, the petitioners have no right to claim that all the vacancies arising over a period of three years should be filled up from only one ranked list. As per the rules, the validity of a ranked list (except in the case of recruitment to posts involving training) is for a period of three years from the date of publication or till a fresh ranked list is published, whichever is earlier. The Commission is therefore free to notify vacancies and publish a fresh ranked list without waiting for the period of three years to run out. Further, recruitment by the Commission to the State Civil Service is a continuous and ongoing process. Every year hundreds of thousands of students pass out of schools and colleges in the State. If the W.P.(C)No.35315/2009 10 contention of the petitioners that the Commission should publish ranked lists large enough to fill up all the vacancies arising during a period of three years from its publication is accepted, students who pass out of schools and colleges will have to wait for years after completion of their studies to even apply for employment. The Commission decides on the number of candidates to be included in the ranked list based on the vacancies actually reported to them and where the vacancies do not exist and are not reported, based on vacancies anticipated to arise”. Therefore, the action of the PSC in bringing into force, a fresh list also cannot be found fault with. The contention of the counsel for the petitioner is that though the list has expired and a new list has been brought into force, appointments can be made from the exhausted list. The counsel has relied on the decision reported in Rajan Pillai v State of Kerala (2002(3) KLT S.N.8 [Case No.11]. During the currency of the rank list, 75 vacancies had been reported on two occasions, but, no appointments had been made to the said vacancies. Therefore, this Court directed that only after the 75 vacancies already W.P.(C)No.35315/2009 11 reported were filled up from the earlier list, appointments can be made from the second list. Such a situation does not arise in the present case, because, in this case, the list was exhausted on 29.10.2008. The previous Writ Petition was filed by the petitioner only on 10.11.2009. The counsel for the petitioner also placed reliance on the decision reported in State of U.P. V Ram Swarup Saroj (2000(3) SC 699). In the said case, the Writ Petition was filed by the petitioner therein before the period of expiry of the rank list. However, during the pendency of the Writ Petition, the period of validity of the list had expired. In the said case, the Hon'ble Supreme Court held that merely because the period of one year had elapsed during the pendency of litigation, the petitioner cannot be declined the relief to which he was entitled to. The counsel for the petitioner has also relied on the decision reported in Sobhana K.S. v State of Kerala and others (2008(3) KHC 909). That was a case in which the list had expired during the pendency W.P.(C)No.35315/2009 12 of the Writ Petition. This Court found that instead of advising candidates who were ranked by the PSC, the third respondent therein had been unlawfully promoted. The court also found that the promotion was made in spite of the fact that direct recruitment was the only mode that could be resorted to in terms of the statutory rules. In such circumstances, the court held that infringement of fundamental rights having been clearly established, the defence that the list had expired could not be sustained. The situation in the present case is totally different. 9. As already noticed, the petitioner is a person who has not been ranked by the PSC. Though he claims that he would have been ranked had the PSC ranked all the persons and had the PSC not adopted the method of shortening the list, the plea has not been established. Since it is within the powers of the PSC to adopt such a method of shortening the list as has been found by the Full Bench, there is nothing wrong in the procedure that has been adopted. W.P.(C)No.35315/2009 13 Though the petitioner had not been ranked in the list, he had not taken any steps to challenge the action of the PSC promptly or diligently. The Writ Petition, which is disposed of by Ext.P4 judgment, was filed only on 10.11.2008, long after the list had been exhausted. The new list has been brought into force on 1.1.2009. As per Ext.P4 judgment, the grievance of the petitioner was directed to be considered by the PSC and the same has been considered and rejected by Ext.P6 proceedings. I do not find any grounds to interfere with the said proceedings. The Writ Petition fails and is accordingly dismissed. No costs. K.SURENDRA MOHAN, JUDGE css/