IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 WP(C).No. 25943 of 2009(S) -------------------------- PETITIONERS: --------------- 1. DIRECTOR GENERAL, DEPARTMENT OF POSTS, DAK BHAVAN,, NEW DELHI. 2. CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM. 3. SUPERINTENDENT OF POST OFFICES, IRINJALAKUDA POSTAL DIVISION, IRINJALAKUDA 680 121. 4. UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS, NEW DELHI. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENT: --------------- JAYAKUMAR R, S/O. SHRI R. NARAYANAN NAIR, AGED 42 YEARS, RESIDING AT RAMANTHARA, HOUSE, ANANDAPURAM P.O., IRINJALAKUDA, POSTAL DIVISION, THRISSUR DISTRICT-23. ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25943 of 2009(S) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 : TRUE COPY OF THE OA NO.311/08 ALONG WITH ITS ANNEXURES FILED BY THE RESPONDENT. EXT.P2 : TRUE COPY OF THE REPLY STATEMENT IN OA NO.311/08 DATED 18.08.08 FILED BY THE PETITIONERS. EXT.P3 : TRUE COPY OF THE ADDITIONAL REPLYS TATMENT IN OA NO.311/08 DATED 28.10.08 FILED BY THE PETITIONERS. EXT.P4 : TRUE COPY OF THE AMENDED OA DATED 08.06.08. EXT.P5 : TRUE COPY OF THE REPLY STATEMENT IN THE AMENDED OA FILED BY THE PETITIONERS HEREIN. EXT.P6 : TRUE COPY OF THE ORDER IN OA NO.311/08 DATED 15.0-7.09 OF THE CAT, ERNAKULAM BENCH. /TRUE COPY/ PA TO JUDGE Thottathil B. Radhakrishnan & P.S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 25943 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th of February, 2010 JUDGMENT Thottathil B. Radhakrishnan , J. This writ petition is filed by the establishment against a decision of the Central Administrative Tribunal. 2. The respondent and others competed in a selection for recruitment from the category of Ex-servicemen to the post of Postal Assistants in the Irinjalakuda Division of the Department of Posts. Annexure A5 before the Tribunal showed that Deepak K.V obtained 84.5 marks in the selection examination. Biju P.A. secured 66.15 marks. Respondent, Jayakumar R, secured 66% marks, the next highest. The list of selected candidates was published on 12.07.07. This information was obtained by the respondent under the Right to Information Act. 3. According to the details of vacancies, only one vacancy was earmarked for Ex-service candidates against the 2005 vacancies for direct recruitment. The select list was published showing only Deepak K.V as the candidate selected for W.P.(C)No. 25943 OF 2009 -:2:- appointment. Annexure A7 before the Tribunal showed the recruitment procedure. It provided in Clause 14 thereof as follows: “(14) Waiting list: A waiting list shall be prepared only to the extent of vacancies announced in the relevant category. The candidates of the waiting list may be considered only in case the selected candidates do not respond or refuse to accept the offer. The names of candidates in the waiting list will not be announced. This list will be current for six months only from the date of declaration of result and will be strictly operated against drop-outs from select list and not against any other vacancy or in any other contingency.” 4. In terms of the aforesaid provision, a waiting list shall be prepared only to the extent of vacancies announced in the relevant category and candidates in the waiting list can be considered only in case when selected candidates do not respond or accept the offer. The names of the candidates in the waiting list were not to be announced. The list is to be current for six months only from the date of declaration of result and has to be strictly operated against drop-outs from the select list and not against any vacancy or in any other contingency. 5. Assimilating the aforesaid rules, the principle to be W.P.(C)No. 25943 OF 2009 -:3:- followed by the establishment can be deduced as one where the waiting list will be secretly maintained and candidates from that list would be pushed up against drop-outs from the selected list. This exercise can be done during the currency of the list which is six months only. The question in the case in hand is not whether that was done, but whether the establishment acted in accordance with the aforesaid Clause by preparing a waiting list of only such number of candidates equal to the total number of vacancies. In the case in hand there was only one vacancy. Therefore, there was only one candidate in the select list namely, Deepak K.V. The establishment assumed that Clause 14 enables or enjoins only the wait listing of one candidate because there is only one vacancy. They, therefore made a waiting list including only Biju P.A. This is maintained in secrecy in terms of Clause 14. Nobody could therefore know it or challenge it. Tribunal found that Clause 14 does not contemplate any such restriction and such Clause has to be operated by pushing up candidates, to be appointed against drop outs during the relevant period. The Department's view is that the the direction in the first sentence of W.P.(C)No. 25943 OF 2009 -:4:- Clause 14 is that a waiting list is to be prepared only to the extent of vacancies announced in the relevant category. This, in our considered view, is totally misplaced. Tribunal has rightly held so. 6. All that the aforesaid provision says is that the waiting list that is prepared would be operationalised only regarding the vacancies which are notified for the purpose of selection in question. This reasoning is easily supported by the last limb of Clause 14 which says that the list will be strictly operated against drop-outs from the select list and not against any vacancy or in any other contingency. Therefore, the waiting list prepared and maintained in relation to a particular selection as regards the vacancies identified in a particular year cannot be operationalised in the subsequent years or as against any vacancy other than those notified under that notification. This does not mean that the establishment has to maintain a waiting list of only such number of candidates equal to that of the total number of notified vacancies. We are also of the view that this in consonance with the larger public interest, which would stand established even W.P.(C)No. 25943 OF 2009 -:5:- from the facts of the case in hand. Initially, the appointment was offered to Deepak K.V. He refused to join. The offer was next made to Biju. He did not join. According to the establishment, Biju was the last member of the waiting list. What is the result ? Public funds have been spent to make a selection to a public office. With only one candidate in the main list and one candidate alone being included in the waiting list, the quick result is that there can be no appointment. There is no intelligible ground on which the waiting list could be confined only to such number of persons equal to the number of vacancies notified. 7. With the aforesaid interpretation of Clause 14, learned counsel for the Department says that the list was published on 12.07.07 and therefore it did not survive six months thereafter and hence the respondent could not have been granted any relief by the Tribunal in June 2008. We notice that the finding of Tribunal is not regarding the currency of the list. In fact, the question of currency of the list is not relevant because according to the Department, the respondent/applicant before the Tribunal W.P.(C)No. 25943 OF 2009 -:6:- was not in the waiting list. Also, they do not have a case that Biju, the second among the advised candidates, left after the currency of the list. The effect of the order of the Tribunal is to treat the respondent herein also as available in the waiting list for being offered appointment as on the date on which the immediate better candidate, Biju P.A refused to join duty. That being the effect of the decision of the Tribunal, we do not find any legal infirmity or jurisdictional error requiring the visitorial jurisdiction under Articles 226 and 227 of the Constitution to be extended at the instance of the establishment. We also note that there is no case that any other Ex-service candidate has been appointed as against the vacancy identified for the purpose of notification in question, though there is a pleading in the reply statement by the establishment before the Tribunal that the vacancy was carried over to the next year. Even there, we do not find that an Ex-service man has been selected and appointed against the particular vacancy in question. We therefore find no merit in the writ petition. 8. Learned counsel for the Department submits that, as of W.P.(C)No. 25943 OF 2009 -:7:- now, another incumbent has been appointed in the next year against the Ex-servicemen quota. Obviously, that could be only reckoned as appointment for next year and now the Department has to make appropriate adjustments to ensure that the order of the Tribunal is given effect to by giving a placement to the respondent in terms of the directions of the Tribunal. Let the effect of the Tribunal's decision in terms of what is aforesaid be enforced within a period of one month from the date of receipt of a copy of this judgment. Subject to the enlargement of time for compliance as above, the Writ Petition is dismissed. Thottathil B. Radhakrishnan, Judge P.S. Gopinathan, Judge ttb W.P.(C)No. 25943 OF 2009 -:8:-