IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 WA.No. 1242 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.7517/2009 Dated 11/03/2009 .................... APPELLANT/PETITIONER ------------------ CISY JAQUILINE, D/O.T.P.NELSON, THEKKEVILA, T.C.44/810, VALIATHURA, NEAR ST.ANTONY'S CHURCH, TRIVANDRUM - 695 008. BY ADV. SRI.GOPAKUMAR R.THALIYAL RESPONDENTS/ RESPONDENTS: -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE 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. SRI.ALEXANDER THOMAS, SC, FOR R3. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A. No.1242 OF 2009 ------------------------------- Dated this the 17th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant is the writ petitioner. He was a candidate included in Ext.P1 rank list published by the Public Service Commission for appointment to the post of Vocational Instructor in Medical Laboratory Technician by direct recruitment in the Kerala Vocational Higher Secondary Education Department. The said list came into force on 30.12.2006. She was rank No.3 in the supplementary list of Latin Catholic community. The appellant submits, rank No.2 in the supplementary list of Latin Catholic community, Sri.S.R.Vinod, was advised by the PSC for appointment as per Ext.P2 advice memo dated 23.9.2008. The appointing authority, by Ext.P3 order dated 23.10.2008, appointed him to Government Vocational Higher Secondary School, B.P.Angadi in Malappuram District. On receipt of Ext.P3 proceedings, he submitted Annexure-II letter to the appointing authority on 7.11.2008 informing that he is not joining duty pursuant to Ext.P2. The time limit allowed for the said candidate W.A.No.1242/2009 2 to join duty expired on 15.11.2008. The Principal of the aforementioned school reported the non-joining duty vacancy of the aforementioned candidate on 8.1.2009. The said communication reached the 2nd respondent Director on 12.1.2009. He reported that non-joining duty vacancy to the Public Service Commission on 21.1.2009. In the mean time, the main list exhausted on 19.1.2009. Therefore, the PSC cannot operate the said list, even for advising the non-joining duty vacancy of reserved communities, in view of the decision of the Apex Court in Nair Service Society v. District Officer, Kerala Public Service Commission [2003(3) KLT 1126]. 2. In the above factual background, the appellant approached this Court, praying to strike down Rule 13 of PSC Rules of Procedure and also seeking a direction to the PSC to advise the appellant to the aforementioned non-joining duty vacancy of Sri.S.R.Vinod. The learned Single Judge, relying on the aforementioned decision of the Apex court, dismissed the Writ Petition. Hence, this Writ Appeal. W.A.No.1242/2009 3 3. The learned counsel for the appellant tried to distinguish the decision of the Apex Court in Nair Service Society v. District Officer, Kerala Public Service Commission (supra). But, we find that the said decision was rendered on facts, identical to those in this case. Once the main list expires, supplementary list could not be operated even for the limited purpose of advising candidates to non-joining duty vacancies to which advices were made prior to the exhaustion of the list. But, the learned counsel for the appellant submitted that there was inordinate delay from the part of the appointing authority to report the non-joining duty vacancy. If the same was reported in time, the appellant would have got employment. But, going by the facts disclosed, we feel there was only normal delay in reporting the non-joining duty vacancies by the Director. 4. Going by the Full Bench decision of this Court in Vimalakumari v. State [1994(2) KLT 47], vacancies which are reported after the expiry of the list cannot be filled up from the expired list. Such vacancies should go to the candidates in the subsequent list going to be published by the PSC. There is no exception to that Rule, even if, the vacancies arose before the expiry of the rank list. The relevant date is not the date of W.A.No.1242/2009 4 occurrence of the vacancy, but, the date of receipt of the reporting of the vacancy from the appointing authority by the PSC. So, the contention of the appellant, that as the vacancy arose earlier, the PSC must appoint the appellant, cannot be accepted. In the result, the Writ Appeal fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps