IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 WP(C).No. 11809 of 2007(E) ------------------------------------- PETITIONER: ----------------- SINDHU M., D/O BALACHANDRAN, AGED 38 YEARS, 'SURYAKANTHI', NEAR KRISHNA NAGAR, PEROORKADA, TRIVANDRUM. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. 3. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. ADV. SRI. ALEXANDER THOMAS SC FOR PSC GOVERNMENT PLEADER SRI. P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 11809/2007 E APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE RELEVAN EXTRACT OF THE SPECIAL RULES FOR KERALA TOWN PLANNING SERVICE. EXT.P2. COPY OF THE RELEVANT PAGES OF THE AMENDMENT TO THE SPECIAL RULES FOR KERALA TOWN PLANNING SERVICE. EXT.P3. COPY OF THE LETTER DT. 27/3/2006 ISUED BY S. MAHALINGAM TO THE R3. EXT.P4. COPY OF THE LETTER DT. 5/6/2006 ISSUED BY S. SABEENA TO THE R3. EXT.P5. COPY OF THE JUDGMENT DT. 29/6/2006 IN WPC NO. 19463/2003 OF THIS COURT. EXT.P6. COPY OF THE AFFIDAVIT FILED BY THE R3, PSC TO THE CONTEMPT PETITION. EXT.P7. COPY OF THE SAID NOTIFICATION INVITING APPLICATION FROM ELIGIBLE CANDIDATES TO THE POST OF DEPUTY TOWN PLANNER. EXT.P8. COPY OF THE NOTIFICATION DT. 6/4/99 INVITING APPLICATION FROM ELIGIBLE CANDIDATES TO THE POST OF DEPUTY TOWN PLANNER. RESPONDENT'S EXHIBITS NIL. True copy tga V.GIRI, J. ------------------------- W.P.(C).No.11809 of 2007 ------------------------- Dated this the 19th day of February, 2008. JUDGMENT The Public Service Commission issued a notification on 6.4.1999 for selection to the post of Deputy Collector in the Town Planning Department. The rank list was brought into force on 8.7.2003. Apparently, there was one NJD vacancy for advice and it was made available to a candidate belonging to the Latin Catholic community. Since there was no Latin Catholic candidate available, the turn was passed over to a Scheduled Caste and it so happened that, an eligible candidate was included in the rank list as Rank No.1. He was advised on 12.8.2003. Petitioner was included in the said list as Rank No.3. The petitioner does not belong either to the Scheduled Caste or to the Latin Catholic community. It seems that rank No.1 relinquished his claim for the post advised. He sent a communication in this regard as per Ext.P3 dated 27.3.2006. There is a dispute as to whether Ext.P3 is eligible to be treated as a relinquishment. W.P.(C).NO.11809/07 :: 2 :: 2. Rank No.2 was deleted from the rank list pursuant to Ext.P4. This was at a point of time when there was no vacancy because Rank No.1 had already been advised and Rank No.1 was yet to relinquish. Petitioner had approached this court earlier in W.P.(C) No.19463/04 for a direction to the commission to advice him. This court permitted the petitioner to approach the commission if she has any surviving grievance. It was further directed by this court that if the petitioner was the person to be advised consequent on the relinquishment of the two persons, being a vacancy which arose prior to amendment of the special rules, then the commission was required to advice the petitioner before the expiry of the rank list. It may be noted here that the amendment which is referred to in Ext.P5 judgment was the amendment to the special rules and apparently the same does not have any bearing on the dispute which currently survives. Petitioner was not advised pursuant to Ext.P5 judgment and hence she instituted a contempt of court case, C.O.C.No.131/06 which apparently is still pending. W.P.(C).NO.11809/07 :: 3 :: Petitioner has, thereafter, filed the instant writ petition challenging the subsequent notification issued by the Public Service Commission for the post in question as Ext.P7. Ext.P7 shows that the Commission has initiated special recruitment for Latin Catholic community for the vacancy in question. The same is still not complete. Apart from challenging Ext.P7, petitioner has also prayed for a mandamus to the 3rd respondent to refrain from further proceeding with Ext.P7. 3. A counter affidavit has been filed by the Commission pointing out that on the date of publication of the rank list an NJD vacancy was available for reporting. The NJD vacancy had to be made available to the Latin Catholic community. But since Latin Catholic candidate was not available in the list, the turn was passed over to a Scheduled Caste to recoup back to the Latin Catholic in the course of the next selection. But the eligible Scheduled Caste candidate was included in the rank list as Rank No.1 and though advised on 12.8.2003, she was not willing to join. She has sent Ext.P6 letter W.P.(C).NO.11809/07 :: 4 :: requesting that her name be deleted. Learned counsel for the Public Service Commission submits that no relinquishment was possible at the said stage because the vacancy had already been reported and all that could have been done was to take note of the failure on the part of the advised candidate to join and then to report the same as NJD vacancy. As a matter of fact, this was done and an NJD vacancy report was received by the commission only later. It is submitted by the commission that by the time NJD report was received, the rank list had expired. Even otherwise since Rule 15(a)of the KSSR was amended and since a suitable candidate was not available for selection from the Latin Catholic community, the vacancy was bound to be kept unfilled and notified separately. This was precisely what was done after Ext.P7. 4. In my view, the stand taken by the Public Service Commission cannot be faulted with. After all a vacancy was available but there was no Latin Catholic candidate. It was only because a Latin Catholic candidate W.P.(C).NO.11809/07 :: 5 :: was not available in the list that the vacancy was made available to first eligible Scheduled Caste candidate. The question as to whether the NJD report of the Scheduled Caste was either before or after the expiry of the rank list as such does not make any difference in circumstances where there is no dispute that an NJD report was received only after 2.2.2006, with effect from the date on which Rule 15(a) of the KSSR was amended. The commission was obliged to treat the said vacancy as NCA vacancy for a Latin Catholic and commence special recruitment for the said community. This has been done in Ext.P7. As I noted above, the procedure adopted by the commission in this regard cannot be faulted with. 5. Learned counsel for the petitioner contended that this court has issued a specific direction to the commission to advice the petitioner before the expiry of the rank list. In my view, this court had issued a direction that the petitioner be advised, provided the petitioner is the person to be advised consequent on the relinquishment of the NJD vacancy. In other words, this W.P.(C).NO.11809/07 :: 6 :: court has not found the eligibility of the petitioner as such. May be, it is unfortunate that the petitioner could not secure an advice, in spite of being included in the rank list. But this was purely due to a change in the circumstances where the petitioner was included in the rank list as Rank No.3 and on account of the fact that Rule 15(a) was amended during the currency of the rank list thereby compelling the commission to notify the vacancy which was earlier marked as NJD vacancy for the Latin Catholic community. For all these reasons, I do not find any merit in this writ petition and the same is, therefore, dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy//