IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 WP(C).No. 18891 of 2007(Y) -------------------------------------- PETITIONER: ------------------- MURUKA KUMARAN NAIR.B., KURAKKODE KIZHAKKUMKARA PUTHENVEEDU, KUDAYAL(P.O.), THIRUVANANTHAPURAM. BY ADV. SRI.T.A.SHAJI, ADV. SMT.T.V.NEEMA. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, IRRIGATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, PUBLIC WORKS (ROADS & BUILDINGS) DEPARTMENT, THIRUVANANTHAPURAM. 4. THE CHIEF ENGINEER (IRRIGATION & ADMINISTRATION), THIRUVANANTHAPURAM. 5. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, P.S.C.OFFICE, PATTOM, THIRUVANANTHAPURAM. BY SR. GOVT. PLEADER SRI. NANDAKUMAR, ADV. SRI.ALEXANDER THOMAS,SC,KPSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/04/2008,ALONG WITH W.P.(C). NO.59/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18891/2007-Y: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE G.O. (P). NO. 34/2003/P&ARD DTD. 19/11/2003 ISSUED BY THE GOVERNMENT. EXT.P.2: COPY OF THE ADVICE MEMO DTD. 17/03/2006 RECEIVED BY THE PETITIONER. EXT.P.3: COPY OF THE ORDER DTD. 06/02/2007 IN R.P. NO. 900/2006 OF THIS HONOURABLE COURT. EXT.P.4: COPY OF THE BREAK UP SHOWING THE NUMBER OF VACANCIES IN IRRIGATION DEPARTMENT AS ON 31/12/2004 PREPARED ON THE BASIS OF THE INFORMATION RECEIVED UNDER THE RIGHT TO INFORMATION ACT. EXT.P.5: COPY OF THE BREAK UP SHOWING THE NUMBER OF VACANCIES IN PWD AS ON 31/12/2004 PREPARED ON THE BASIS OF THE INFORMATION RECEIVED UNDER THE RIGHT TO INFORMATION ACT. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. V. GIRI ,J. ------------------------------- WP(C).NO.18891/2007 & 59 of 2008 --------------------------------- Dated this the 3rd day of April, 2008. JUDGMENT Common issues arise for consideration in these writ petitions and therefore they have been heard together and are being disposed of by this common judgment. I will refer to the facts in WP (C).No.18891/2007 in the first instance. 2. The petitioner was included in the rank list published by the PSC for the post of Third Grade Overseer in the Public Works/Irrigation Department. The rank list was due to expire on 31.12.2004. Apparently, though there were vacancies in the department, they were not reported to the PSC and therefore persons included in the rank list had approached this court inter alia seeking a direction for reporting the available vacancies to the PSC and to advice candidates against the vacancies so reported. 3. By an interim order, this court directed that 602 vacancies in the Irrigation Department and 208 vacancies in the PWD were reported to the PSC before the expiry of the rank list. It seems that 602 vacancies were reported from the Irrigation Department prior to the expiry of the rank list on 31.12.2004. Only 67 vacancies were available for advising the candidates as on 31.12.2004. This court WPC. 18891/2007 & 59/2008 2 had earlier directed that the reporting of the vacancies will be provisional subject to further orders to be passed by this court. 4. It seems that thereafter on a motion made by the petitioners in these writ petitions Ext.P1 order in WPC.No.59/2008 came to be passed recording the submission made by the learned Government Pleader that 67 vacancies existed on 31.12.2004. Therefore direction was given to the PSC to advice 67 candidates for the post of third grade Overseers. Accordingly advice memos were issued to the petitioners in both cases. It is stated therein that the advice is in compliance with the order dated 17.2.2006 in WP(C). No.34519/2004. 5. WP(C).No.34519/2004 along with connected writ petition were taken up for hearing and they were disposed of under Ext.P3 judgment in WP(C).No.59/2008. This court referred to the submission of the learned Government Pleader that only 27 vacancies were available as on 31.12.2004. Out of that, 8 candidates were advised against those vacancies and the remaining vacancies were 19. It was observed that the petitioners have not produced any material to show that the additional vacancies over and above those admitted by the respondents were actually available. Accordingly, the writ petition was disposed of directing the PSC to advise candidates to 19 vacancies WPC. 18891/2007 & 59/2008 3 of third grade Overseer, reported from the Irrigation Department. The judgment was sought to be reviewed and the review petition was dismissed as per Ext.P3 order in WP(C)18891/2007. Ultimately the issue was taken up in appeal before the Division Bench. The appeal was dismissed under Ext.R4(b) judgment in WP(C).18891/2007. 6. The petitioners in both these cases were advised pursuant to the interim order passed in WP(C).No.34519/2004 produced as Ext.P1 in WP(C).59/2008. As noted above, the advice memos were specifically issued based on the order passed by this court on 17.2.2006. Ultimately, when the writ petitions were disposed of directing advice to be made to 19 vacancies reported from the Irrigation Department, the PSC had clarified that advice is being made only to 19 vacancies and it is therefore that orders of appointments were issued only to 19 persons. It therefore turned out that though the petitioners were advised pursuant to the interim order passed by this court, they were not issued orders of appointment. Hence these writ petitions. 7. A counter affidavit has been filed by the respondents contending that the issue has been settled by the earlier judgment of this court and the petitioners were advised only pursuant to the interim order passed by this court. Since ultimately, the writ petition was WPC. 18891/2007 & 59/2008 4 disposed of directing advice to be made only to 19 out of 27 vacancies (taking note of the advice made to 8 vacancies even earlier), the petitioners cannot claim a right to be appointed. 8. I heard learned counsel for the petitioners Sri.T.A.Shaji and Sri.Mohammed Shiraz, Sri.Nandakumar, learned Senior Government Pleader and Standing Counsel for the PSC Sri.Alexander Thomas. Learned counsel for the petitioners submits that as a matter of fact, 602 vacancies were actually reported from the Irrigation Department prior to the expiry of the rank list. But 602 vacancies were reported as per the court direction and going by the counter affidavit filed by the respondents in this case at least 32 more vacancies were available as on the date of expiry of the rank list. It is contended that the abovementioned vacancies should therefore treated as substantive vacancies and if that be so, irrespective of whether advice was made pursuant to the interim order passed by this court, in the light of the fact that they were reported to the PSC within time, advice should have been made against them. It is contended that the advice actually made should be treated as regular and therefore direction may be issued to the Government to issue orders of appointment on the said basis. I am afraid I am unable to accept this contention. The issue as to how many vacancies should be treated as WPC. 18891/2007 & 59/2008 5 available to be filled up on the date of expiry of the rank list, in my view has been settled by Ext.P3 judgment which has been affirmed in Ext.R4(b) judgment. 9. Learned counsel for the petitioners submits that a special leave petition has been preferred against Ext.R2(b) judgment. As on date the finding in Ext.P3 judgment as affirmed in Ext.R4(b) judgment governs the situation. In other words, the Government and the PSC are entitled to proceed on the premise that the number of vacancies required to be filled up from the rank list in question, were only 27. This court assessed the vacancy position as on the date of expiry of the rank list, required to be further filled up by enforcement of the rank list as 27. To accept the case of the petitioner now is to come to a conclusion that the number of vacancies otherwise available to be filled up by enforcement of the rank list is in excess of 27. I am afraid I am not in a position to do so as I am bound by Ext.R4(a) and R4(b) judgments. 10. Both the petitioners were aware of the fact that they have been advised pursuant to the interim direction issued by this court. I take note of the fact that the advice issued by the petitioners are dated 17.3.2006. But the writ petition came to be disposed of only under Ext.R4(a) judgment dated 1.8.2006. The petitioner in WP(C). WPC. 18891/2007 & 59/2008 6 No.59/2008 was an additional respondent in Writ Appeal which ultimately led to Ext.R4(b) judgment. For all these reasons, I do not find any reason to issue any direction in these cases. The writ petitions are bereft of merit and hence dismissed. pmn/ V. GIRI, JUDGE.