IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 WP(C).No. 35036 of 2005(U) PETITIONER: JOSE.L., AGED 37 YEARS, S/O.LAZER.J. JOSE BHAVAN, ZION HILL, VEMBAYAM P.O. NEDUMANGAD, THIRUVANANTHAPURAM 695 615. BY ADV. SMT.M.P.MARY RESPONDENTS: 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.P.SHRIHARI FOR R1 SMT.P.VANI FOR R1 SENIOR GOVERNMENT PLEADER SRI. BENNY GERVASIS -R3 SRI.ALEXANDER THOMAS,STANDING COUNSEL,KPSC - R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.P.(C) NO. 35036 of 2005 --------------------------------------------- Dated this the 24th day of July, 2009 JUDGMENT Balakrishnan Nair, J. The writ petitioner was included in the rank list published by the Kerala Public Service Commission for appointment to the post of Last Grade Servant in Kozhikode District. The rank list expired on 6.5.2006. The petitioner admittedly approached this Court earlier. Since, the claim of the petitioner was for advising him to one of the vacancies reported, the expiry of the rank list was ignored and this Court on 5.6.2009 passed the following interim order: “Heard the learned counsel on both sides. The writ petitioner was a person included in Ext.P1 rank list published by the Public Service Commission for appointment to the post of Last Grade Servant in Kozhikode district. He was rank No.26 in the supplementary list of Nadars, which included Hindu Nadar and SIUC Nadar. Pursuant to Exts.P5 and P6 orders of the Government, the petitioner was removed from the said list. But, he did not have sufficient marks to get a place in the O.B.C. list. So, he was excluded from the list altogether. Subsequently, based on the interim order of the W.P.(C) NO. 35036/2005 2 Apex Court, the P.S.C. passed Ext.P8 order dated 12.4.2005. As per that order, the 38N turn in the hundred point roster was allotted to SIUC/Anglo Indian community. The Supreme Court disposed of the Civil Appeal finally, as per Ext.P10 judgment dated 28.3.2006, directing to go by Ext.P8 order of the P.S.C., until the Government take a decision in the matter, based on the report of the Backward Classes Commission. The petitioner claims, the P.S.C. should have re-cast the rank list immediately. If the petitioner was having sufficient marks, he should have been included in the supplementary list of SIUC/Anglo Indian, for appointment to the 38N turn and the vacancies reported after 28.3.2006 up to 6.5.2006 should have been filled up only after re-casting the rank list. Prima facie, we find considerable force in the submission of the writ petitioner. The P.S.C. is directed to find out, if the rank list was re-cast in terms of Ext.P8 on 28.3.2006, whether the petitioner would have found a place in it and whether his turn would have arisen, while advising candidates to the vacancies reported between 28.3.2006 and 6.5.2006. The P.S.C. is directed to file an affidavit on the above aspect within two weeks from today. Call after two weeks.” 2. Pursuant to the above order, the Public Service Commission has filed an affidavit stating that if the advice is made strictly in accordance with seniority, the petitioner's turn would not have arisen for advice during the life of the rank list. The petitioner has filed a reply affidavit disputing the stand of the Public Service Commission. Further, the learned counsel for the writ petitioner submitted that other S.I.U.C. Nadars, who might W.P.(C) NO. 35036/2005 3 have been advised ahead of the petitioner, have not approached this Court and, therefore, this Court need not consider their claim and the claim of the petitioner may be taken into account. 3. Litigative persistence cannot be a ground for granting relief by this Court, especially when the matter relates to advice for appointment from the rank list published by the Public Service Commission. If the petitioner's turn had arisen in the usual course, but for the alleged irregularities committed by the Public Service Commission, then only this Court can consider ordering his advice for appointment. In this case, going by the materials on record, we are satisfied that the petitioner's turn would not have arisen, even assuming that the case canvassed by him is correct. Therefore, it is unnecessary for us to deal with the merits of the contentions of the writ petitioner. Accordingly, the Writ Petition is closed as infructuous. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.P.(C) NO. 35036/2005 4 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.P.(C)NO.35036/2005 JUDGMENT 24th July, 2009 W.P.(C) NO. 35036/2005 5