IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 WP(C).No. 6729 of 2011(M) --------------------------------------- PETITIONER(S): ------------------------- PRADEEPAN.M.K, AMALA HOUSE, PINARAYI P.O., THALASSERY, KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): ---------------------------- 1. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KASARAGOD-671 121. 2. THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD-671 121. 3. STATE OF KERALA REP. BY SECRETARY, DEPARTMENT OF EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001. *ADDL.R4 TO R6 IMPLEADED: R4. M.P.SANTHA, W/O.M.P.NARAYANAN, KRIPA, POOKKOTHUMPADAM PO, MALAPPURAM DISTRICT - 679 332. R5. BEENA THOMAS, THADATHIL HOUSE, MANATHOOR PO, ERNAKULAM. Kss ..2/- ...2.... WPC.NO.6729/2011 M R6. SOMASEKHARAN T.P., RAMAPURAM HOUSE, KODAVALAM, PULLOR PO, ANAND ASRAMAM VIA, KASARAGODE -31. (*ADDL.R4 TO R6 ARE IMPLEADED AS PER ORDER DTD. 11/04/2011 IN I.A.NO.6773/2011) R1 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R2 & R3 BY GOVERNMENT PLEADER SMT. NISHA BOSE ADDL.R4 BY ADVS.SRI.K.C.A.MUNEER, SRI.UNNIKRISHNAN.V.ALAPATT. ADDL.R5 BY SRI.ABRAHAM VAKKANAL, SENIOR ADVOCATE, BY ADVS.SRI.DIJO SEBASTIAN, SMT.VINEETHA SUSAN THOMAS. ADDL.R6 BY ADV. SRI.KODOTH SREEDHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2011 ALONG WITH WPC NO. 10929 OF 2011, THE COURT ON 23/09/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.6729/2011 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ADVISE MEMO ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT DTD. 15/07/2004. P2: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS 1 AND 2 DTD. 20/12/2010. P3: CIRCULAR NO.127135/SD 4/82/GAD DTD. 25/01/1983 ISSUED BY THE GOVERNMENT. RESPONDENT'S EXHIBITS: R5(A): COPY OF THE ADVISE MEMO ISSUED TO THE PETITIONER DTD. 15/07/2004. R5(B): COPY OF JUDGMENT IN WPC.NO.32338/04 DTD. 14/01/2005. R5(C): COPY OF APPOINTMENT ORDER NO.A2/11277/04 BY THE 3RD RESPONDENT DTD. 16/02/2005. R5(D): COPY OF THE APPOINTMENT ORDER NO.A2/11277/04 DTD. 07/04/2005. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.6729/2011-N & 10929/2011-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of September, 2011. JUDGMENT Both these writ petitions are filed by competent claimants for appointment to the post of Music Teacher in Kasaragod District. The petitioner in W.P.(C) No.6729/2011 seeks for a direction to the second respondent to give appointment to the petitioner in terms of Ext.P1 advice memo. 2. The Public Service Commission issued a notification for appointment to the post of Music Teacher (LPS, UPS) in Kasaragod District. The petitioner was rank No.2 in the rank list. He was issued with advice memo dated 15.7.2004 (Ext.P1), but no appointment was made. Coming to know that the petitioner's juniors are being appointed overlooking the seniority, he filed a representation as per Ext.P2. The petitioner in W.P.(C) No.10929/2011 has been impleaded as additional respondent No.5 therein. Respondents 4 and 6 are two other persons included in the advice list as rank Nos.3 and 6, whereas the additional fifth respondent is rank No.7. 3. The petitioner in W.P.(C) No.10929/2011 (additional fifth wpc 6729/2011 & 10929/2011 2 respondent in W.P.(C) No.6729/2011) has approached this Court in the following circumstances. The petitioner and one Mr. Narendra Babu T. were issued advice memos dated 15.7.2004 (Exts.P3 and P4). No appointment orders were issued in spite of the service of advice memos and they filed W.P.(C) No.32338/2004 seeking for various directions. As per Ext.P7 judgment, this Court directed the respondents to issue appointment orders within two weeks and their right for re-appointment was also protected in the event of retrenchment for want of vacancy. Later, the petitioner and Shri Narendra Babu were issued appointment orders as per Exts.P8 and P9. The petitioner has been pursuing her remedies in the matter and coming to know that Mr. M.K. Pradeepan who is the petitioner in W.P.(C) No.6729/2011 is proposed to be appointed in a later vacancy, the petitioner filed this writ petition. Pursuant to the interim order passed by this Court on 21.6.2011, the Deputy Director of Education passed Ext.P13 order holding the view that Shri M.K. Pradeepan is the rightful claimant. 4. Heard learned Senior Counsel for the petitioner in W.P.(C) No.10929/2011 Shri Abraham Vakkanal, learned counsel for the petitioner in W.P.(C) No.6729/2011 Shri Cibi Thomas, Shri P.C. Sasidharan, Shri Kodoth Sreedharan, Shri K.C.A. Muneer and Shri K. Praveenkumar, learned counsel appearing for the party respondents and learned Govt. Pleader. wpc 6729/2011 & 10929/2011 3 5. The Public Service Commission has detailed the factual position in their counter affidavit. First I will deal with the claims raised by the petitioner in W.P.(C) No.10929/2011. 6. The Public Service Commission in their counter affidavit, has given the details of the advice list. Going by the same, in terms of the rules of rotation and reservation, the ranking in the seniority based advice list, as contained in paragraph 6 of the counter affidavit, will be as follows: 1. Narendrababu .T. 2. Pradeepan M.K. 3. Santha K.P. 4. Gracy K.J. 5. Flory N.X. 6. Somasekharan T.P. 7. Beena Thomas The ranked list came into force on 22.12.1993. The petitioner, Smt. Beena Thomas was included as rank No.5. Pursuant to the interim order passed in O.P. No.19923/1996, seven vacancies were reported to the Public Service Commission on 20.12.1996. After the final judgment was pronounced on 15.3.2004, seven candidates including the petitioner were advised for the post on 15.7.2004. The seniority based advice list of the seven candidates on the basis of rules of rotation which is reproduced above, shows that Shri wpc 6729/2011 & 10929/2011 4 Narendra Babu T. stood as first, Shri M.K. Pradeepan (petitioner in W.P. (C) No.6729/2011 stood as second, Smt. Beena Thomas stood as seventh, Smt. M.P. Santha, the additional 4th respondent in W.P.(C) No.6729/2011 stood as third and Shri Somasekharan T.P., additional 6th respondent in W.P. (C) No.6729/2011 stood as 6th. 7. Shri Abraham Vakkanal, learned Senior Counsel appearing for the petitioner Smt. Beena Thomas contended that Shri M.K. Pradeepan who is now sought to be appointed, has lost his claim for appointment as he never approached this Court for getting any appointment pursuant to the advice memo issued. It is submitted that his legal right for appointment has thus been lost due to laches and delay. It is therefore submitted that Ext.P13 cannot survive at all. It is further submitted that going by the decision of this Court in Sreekantan Nair v. Muraleedharan Nair (1991 (2) KLT page 3, Case No.4), advice cannot survive beyond two years after the expiry of the rank list. The writ petition filed by Shri M.K. Pradeepan as W.P.(C) NO.6729/2011 is after the expiry of two years. Therefore, he cannot have any claim at all. It is pointed out that in spite of the fact that the above said judgment was relied upon by the petitioner before the Deputy Director of Education, the point was not considered at all. 8. It is also submitted that additional respondents 4 and 6 in W.P.(C) wpc 6729/2011 & 10929/2011 5 No.6729/2011 have not approached this Court seeking for any direction to appoint them in the existing vacancy. Therefore, they have also lost their rights and therefore, Smt Beena Thomas alone is in the field and her rightful claim will have to be directed to be accepted by the respondents concerned. 9. In answer to the same, learned Standing Counsel for the Public Service Commission Shri P.C. Sasidharan submitted that the Commission cannot overlook the ranking in the advice list. After the advice memos were issued pursuant to the judgment of this Court, candidates were re-registered. In terms of the same, Shri M.K. Pradeepan, who is now ranked as No.2 in the advice list, is the rightful claimant. It is submitted that the petitioner cannot have any march over others merely because she has approached this Court earlier and is now challenging Ext.P13 order issued in favour of Shri Pradeepan. It is pointed out that mere filing of a writ petition by a person who is lower in ranking, cannot result in a favourable direction overlooking the claim of persons higher in the rank list and advice list. These contentions were supported by the learned counsel for the petitioner in W.P. (C) NO.6729/2011 and learned counsel appearing for additional respondents 4 and 6 therein. It is pointed out by learned counsel for additional respondents 4 and 6 that the said respondents had also approached this Court earlier and all the three writ petitions were disposed wpc 6729/2011 & 10929/2011 6 of by Ext.P7 judgment produced in W.P.(C) No.10929/2011 and therefore whatever rights which have accrued to the parties as per the said judgment, will have to be preserved and the petitioner in W.P.(C) No.10929/2011 cannot therefore can have a march over the others. Learned counsel for the petitioner in W.P.(C) No.6729/2011 further submitted that the non filing of a writ petition by the said petitioner is not of any consequence in the light of the directions contained in the said judgment itself and my attention was invited to para 4 therein. 10. The decision relied upon by the learned Senior Counsel for the petitioner, viz. Sreekantan Nair's case (1991 (2) KLT Case No.4) is an order passed in C.M.P. No.2861/1990 in O.P.No.6469/1984. Therein, the Division Bench was considering a case where the candidates were not appointed due to lack of vacancies. It was held that “advice made cannot be permitted to outlive a reasonable period of two years after the expiry of the rank list.” The crucial dictum therein, reads as follows: “It will be unjust and unreasonable to keep the advice pending for an unduly long period of time to enable the person advised to be appointed at any future time, whatever be the period that has elapsed after the advice. Keeping the advice and the right to appointment alive for an unreasonably long time is itself arbitrary and violative of the guarantee of equality of opportunity under wpc 6729/2011 & 10929/2011 7 Arts. 14 & 16 of the Constitution. Equal opportunity for public employment is one of the fundamental freedoms guaranteed by the Constitution. Public employment opportunity is national wealth or property of the nation which all citizens are equally entitled to share subject of course to the possession, of qualifications necessary for holding the post. No class of people can monopolise public employment for any reason. Right to employment is not private property, but one to be shared equally by all those who are eligible for it. Apart from the contingency of unreasonable inflation in number of vacancies notified for selection, it may also happen that vacancies once notified may be abolished for various reasons, or Government may choose not to fill up those vacancies for reasons like financial stringency, change of policy and the like. To confine future appointments in such cases to those selected years back and deny the benefit thereof to future generations will be the very negation of the concept of fairness and justness guaranteed by Arts. 14 & 16. The period of validity of a rank list from out of which advice for appointment is made was two years previously and currently it is three years. We feel that advice of any candidate ought not to be valid or pending for an unreasonably long period of time. A period of two years after the expiry of the rank list will be reasonable for the advice to be alive and to continue the right of the advised candidate to be appointed. It is no doubt true that the authority should not arbitrarily refuse to make appointments, if there are vacancies, or any unreasonable or extraneous reasons. If there is such unreasonableness or their part, wpc 6729/2011 & 10929/2011 8 this court will certainly intervene to see that the vacancies are filled up in due time so that candidates advised may not be deprived of their rights under the advice. But where, as in this case, there were no vacancies to which the advised candidates could be appointed, or where the posts stand abolished, or are not to be filled up for various reasons like financial stringency, the advice made cannot be permitted to outlive a reasonable period of say two years after the expiry of the rank list.” Obviously it is a case where no vacancies were available during the currency of the rank list. Herein, both sides are relying upon Ext.P7 judgment which is a common judgment in W.P.(C) Nos.31699, 32338 and 35759 of 2004. The writ petitions were disposed of on 14.1.2005. In para 3 it was held as follows: “ I find that on advice memos being issued, everyone of them has a right to get appointed and this cannot be denied.” Finally it was directed as follows: “It should be ensured that in any case, either in the case of deployment or in the case of retrenchment, they should be accommodated to the earliest arising vacancy, before the claims of any other persons, who have been advised on a later date is taken notice of.” 11. Going by the same, the direction is to accommodate the wpc 6729/2011 & 10929/2011 9 candidates in earliest arising vacancies in preference to the candidates who have been advised on a later date. Therefore, essentially the direction is to appoint persons in subsequent vacancies in terms of the dates on which the advice memos are issued. The advice memos issued herein in respect of both the petitioners is dated 15.7.2004, as evident from Ext.P3 produced in W.P.(C) No.10929/2011 and Ext.P1 produced in W.P.(C) No.6729/2011. Therefore, the advice of the petitioner in W.P.(C) No.6729/2011 is not on a later date as that of the advice made of the petitioner Smt. Beena Thomas. Therefore, her claim, going by Ext.P7 judgment, in that regard cannot be enforced against the petitioner in W.P.(C) No.6729/2011 based on the date of the advice memo. The proceedings of the Deputy Director of Education, Ext.P8 produced in W.P.(C) No.10929/2011 also cannot help the petitioner Smt. Beena Thomas. Evidently, Smt. Beena Thomas was retrenched and what is ensured by Ext.P8 is evident from the last sentence therein, which reads as follows: “When vacancy arises in future in the cadre of Music Teachers in this District, the candidates shall be preformed for reappointment according to their position in the advised list.” Going by the same, only in terms of the position in the advice list alone, the petitioner Smt. Beena Thomas will get a claim for reappointment. There is wpc 6729/2011 & 10929/2011 10 no challenge against Ext.P8 herein. The contention raised by the learned Standing Counsel for the Commission that the ranking given in the advice list will have to be followed, is therefore of much importance in deciding the rights of parties herein. Therefore, in the light of the directions in Ext.P7 and the stipulations in Ext.P8, the observations made by the Division Bench in the decision relied upon by the learned Senior Counsel for the petitioner in Sreekantan Nair's case (1991 (2) KLT S.N. 4) cannot have any application. The contingencies considered therein, viz. absence of vacancies on abolition of post and other factors, are not the ones arising herein. Herein, the directions of this Court in Ext.P7 protects the rights of all parties in the advice list. Shri Abraham Vakkanal, learned Senior Counsel submitted that the direction in Ext.P7 judgment cannot enure to the petitioner in W.P.(C) No.6729/2011 as he was not a petitioner in that writ petition. 12. Herein, it can be seen that this court had specifically directed in Ext.P7 that the rights of the parties including the petitioner Smt. Beena Thomas is for accommodation in the earliest arising vacancy in preference to any candidates advised later. As already noticed, the petitioners in both the writ petitions were advised on 15.7.2004 itself. Therefore, the petitioner in W.P.(C) No.6729/2011 is well protected by the said stipulation also and wpc 6729/2011 & 10929/2011 11 the direction therein is not to his exclusion. 13. Apart from that, the contesting respondents 4 and 6 in W.P.(C) No.6729/2011 were also petitioners before this Court in the connected writ petitions which were disposed of together by Ext.P7 judgment. They are ranked above the petitioner Smt. Beena Thomas. She is only ranked 7 in the advice list, as already noticed. Therefore, she cannot have a march over the others in the advice list, by any stretch of imagination, merely because she is a petitioner now before this Court. The contention forcefully made by the learned Senior Counsel that against the contesting claimant Shri M.K. Pradeepan, the petitioner Smt. Beena Thomas alone has approached this Court, cannot help her in the light of the directions already issued by this Court in Ext.P7 judgment wherein the contesting respondents 4 and 6 in W.P.(C) No.6729/2011 are also arrayed as petitioners. Therefore, only in terms of the ranking in the advice list alone the appointment can be made. 14. Shri Abraham Vakkanal, learned Senior Counsel relied upon two decisions of the Apex Court in Hira Tikkoo v. Union Territory, Chandigarh and others {(2004) 6 SCC 765} and Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and others v. Director General of Civil Aviation and others {(2011) 5 SCC 435} to contend for wpc 6729/2011 & 10929/2011 12 the position that the rights of the petitioner in W.P.(C) No.6729/2011 Shri M.K. Pradeepan has been lost by laches and delay. In para 39 of the judgment in Hira Tikkoo's case {(2004) 6 SCC 765} with regard to the claim of certain allottees under a town planning scheme, the Apex Court held as follows: “It will have to be presumed that having not ventilated their grievances and enforced their rights, if any, at any earlier stage, they have abandoned their claims. Merely because during the pendency of court proceedings, some rounds of negotiations and discussions took place in which the Administration also invited them, would not furnish them a cause of action to raise their claims which they had earlier given up by their inaction and lapse. In adjusting equities and on rule of fairness, those who have languished and slept over their rights have to be denied any relief more so when there has been such a time lag between the original allotment and the proposed allotment of alternative plots.” In ALPAI's case {(2011) 5 SCC 435) in para 12, while considering the doctrine of election, it was observed as follows: “By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. “ 15. Even though the plea raised by the learned Senior Counsel is forceful, on a closer scrutiny, it can be seen that the dictum therein do not wpc 6729/2011 & 10929/2011 13 apply in the light of the facts already discussed above. In the light of Ext.P7 judgment in W.P.(C) No.10929/2011 and Ext.P8 proceedings, the right of the petitioner in W.P.(C) No.6729/2011 cannot be brushed aside to the advantage of the petitioner in W.P.(C) No.10929/2011 who is only ranked 7 in the advice list. Therefore, the said principles are distinguishable on the emerging facts herein and this case stands on a different footing. 16. The other decision cited is Somukuttan Nair v. State of Kerala (1997 (1) KLT 601) wherein, while considering the effect of declaration of law made by this Court, this Court held that the Government is bound to implement the same uniformly to all officers concerned. The crucial sentences in para 10 are as follows: “When the Courts declared the law, the Government is bound to implement the same uniformly to all the officers concerned. To say that only persons who approached the Court would be given the benefit of the declaration of law is really discriminatory and arbitrary. It is also not conducive to the administrative efficiency to drive all the officers to Courts for redressal of their grievances when the law was already declared by the Courts.” wpc 6729/2011 & 10929/2011 14 Of course, Shri Abraham Vakkanal, learned Senior Counsel tried to distinguish the said dictum by stating that the petitioner Shri M.K. Pradeepan has actually slept over his rights and therefore the said dictum cannot help him also. 17. I have already discussed the effect of the directions in Ext.P7 judgment. Unless the petitioner in W.P.(C) No.10929/2011 has a march over the rights of all others in the advice list, this Court will not be justified in directing her to be appointed in the existing vacancy. Both on factual and legal aspects she cannot have a march over the others. Simply because she figures as the petitioner in W.P.(C) No.10929/2011, the rights of others higher in the advice list, cannot be brushed aside by this Court. Therefore, the principle stated in Somukuttan Nair's case (1997 (1) KLT 601) will have application here. 18. Evidently, Smt. Beena Thomas, the petitioner in W.P.(C) No.10929/2011 is only ranked 7 in the advice list and at any rate, she cannot assert her right over the additional respondents 4 an 6 in W.P.(C) No.6729/2011. Of course, Shri Abraham Vakkanal, learned Senior Counsel submitted that they have brought in as additional respondents by the petitioner therein, deliberately to deny the right of the petitioner in W.P.(C) No.10929/2011. As rightly pointed out by the learned counsel for the wpc 6729/2011 & 10929/2011 15 parties in W.P.(C) No.6729/2011 the matter will entirely depend upon the directions in the common judgment, Ext.P7 and the petitioner in W.P.(C) No.10929/2011, Smt. Beena Thomas cannot claim any right to the exclusion of all others. Therefore I reject the said contention also. Ext.P13 order produced in W.P.(C) No.10929/2011 is valid and legal. 19. W.P.(C) No.6729/2011 is thus allowed and W.P.(C) No.10929/2011 is dismissed. There will be a direction to respondents 1 to 3 in W.P.(C) No.6729/2011 to give appointment to the parties concerned in terms of the seniority in the advice list and the existing vacancies will be filled up expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/