IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WP(C).No. 7517 of 2009(H) ---------------------------------- PETITIONER : ---------------- CISY JAQUILINE, D/O.T.P.NELSON, THEKKEVILA, T.C.44/810, VALIATHURA, NEAR ST.ANTONY'S CHURCH, TRIVANDRUM-695 008. BY ADV. DR.K.P.KYLASANATHA PILLAY SMT.V.J.SAFEENA SMT.SHALEENA RAJAN SMT.SREEDEVI KYLASANATH RESPONDENTS : ------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT FOR EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR, KERALA VOCATIONAL HIGHER SECONDARY EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. --------------------------------------- W.P.(C) No.7517 OF 2009 --------------------------------------- Dated this the 11th day of March, 2009 JUDGMENT Heard Dr.K.P.Kylasanatha Pillay, the learned counsel appearing for the petitioner. 2. The petitioner is a candidate included in Ext.P1 ranked list for appointment of the post of Vocational Instructor in Medical Laboratory Technician in the Vocational Higher Secondary Education Department. The ranked list came into force on 30.12.2006. The petitioner is rank No.3 in the supplementary list of Latin Catholic candidates. Rank numbers 1 and 2 in the supplementary list of Latin Catholic Candidates were advised. The petitioner was the next eligible candidate to be advised in the Latin Catholic category. Sri.S.R.Vinod, the second among the Latin Catholic candidates in the supplementary list was advised for appointment as per Ext.P2 advise memo dated 23.09.2008. He was thereafter appointed by Ext.P3 appointment order dated 23.10.2008 and posted in Government Vocational Higher Secondary School, B.P.Angadi in Malappuram District. He was directed to report for duty on or before 15.11.2008. W.P.(C) No.7517 of 2009 2 3. It appears Sri.S.R.Vinod was employed elsewhere and did not accept the appointment made as per Ext.P3. Thereafter, the main list of the ranked list was exhausted on 19.01.2009, when the last candidate in the main list of Ext.P1 ranked list was advised. The grievance of the petitioner is that if the Director of Vocational Higher Secondary Education had been vigilant in reporting the non joining duty vacancy that arose when Sri.S.R.Vinod did not join duty to the Kerala Public Service Commission in time, as the next Latin Catholic candidate, the petitioner would have been advised for appointment. The petitioner contends that it was only due to the delay on the part of the Director of Vocational Higher Secondary Education in reporting the non joining duty vacancy to the Commission that she lost her chance of being advised for appointment, before the main list of Ext.P1 ranked list was exhausted on 19.01.2009. 4. It is not in dispute that Sri.S.R.Vinod had not submitted a letter of relinquishment as prescribed in Rule 18 (ii) of the Kerala Public Service Commission Rules of Procedure to the Secretary of the Kerala Public Service W.P.(C) No.7517 of 2009 3 Commission. The contention of the petitioner is that the Director of Vocational Higher Secondary Education ought to have on the expiry of the joining time ascertained whether Sri.S.R.Vinod had joined duty or not and if he had not joined duty, reported the said vacancy as a non joining duty vacancy to the Commission before 19.01.2009. Ext.P3 order of appointment was issued on 23.10.2008. The rules permitted the Government to extend the joining time upto 90 days. The Government could have exercised the power conferred on it and granted to Sri.S.R.Vinod joining time upto 90 days. The Director of Vocational Higher Secondary Education could not therefore have by himself, reported to the Commission that as Sri.S.R.Vinod did not join duty within 45 days, a non joining duty vacancy has arisen and reported that vacancy to the Commission. Ext.P7 discloses that as soon as the information was received from the Principal, Government Vocational Higher Secondary Education, B.P.Angadi, Malappuram that Sri.S.R.Vinod has not joined duty, the non joining duty vacancy was reported by the Director of Vocational Higher Secondary Education to the Commission. By then, the main list of the W.P.(C) No.7517 of 2009 4 ranked list was exhausted on 19.01.2009, when the last of the candidates in the main list was advised. In view of the fact that the main list stood exhausted, no advise can be made from the supplementary lists as held by the Apex Court in Nair Service Society Vs. District Officer, Kerala Public Service Commission (2003(3) KLT 1126). The petitioner cannot therefore claim appointment based on the inclusion of her name in Ext.P1 ranked list. 5. The learned counsel for petitioner submits that the petitioner may be given an opportunity to move the Government invoking the power under Rule 39 of the KS and SSR. In my opinion, in the light of the authoritative pronouncement of the Apex Court, as the ranked list has ceased to be in force the Government cannot exercise the power under Rule 39 and direct that candidates included in the supplementary lists should be advised even though the main list stands exhausted. In my opinion, the power of the Government under Rule 39 cannot be invoked to get over the decision of the Apex Court and the interpretation placed on the rules by the Apex Court. Hence, I am not inclined to grant W.P.(C) No.7517 of 2009 5 the said request also. For the reasons stated above, I hold that there is no merit in this writ petition. The writ petition fails and is accordingly dismissed in limine. P.N.RAVINDRAN JUDGE pac