IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 22828 of 2009(W) ----------------------------------------- PETITIONER(S): ------------------------ 1. NASEEMA.K.K., AGED 35, ELATHUNGAL HOUSE, PERUMBILLICHIRA P.O., THODUPUZHA, IDUKKI DISTRICT-685 605. 2. ISHA K.I., AGED 39, W/O.NAZAR, ERAMBATH HOUSE, THODUPUZHA EAST P.O., KARIKKODU, IDUKKI DISTRICT-685 585. 3. SOUJA.P.K., AGED 36, LABBAVEETTIL HOUSE, KANJOOR P.O., IDUKKI DISTRICT-685 605. 4. RANJINI RAJASEKHARAN, AGED 29, PANANTHOTTATHIL HOUSE, DEVERUPARA P.O., POOCHAPRA, PIN-685 588. 5. MOLLY.P.S., AGED 41, PERUMPANAMIKAL HOUSE, VASHITHALA P.O., THODUPUZHA, IDUKKI DISTRICT-685 583. 6. NABEESA.K.S., AGED 39, KOCHELAVUNKAL HOUSE, MANAKKAD P.O., THODUPUZHA, IDUKKI DISTRICT-685 587. 7. KHADEEJA.K.S., AGED 40, PEZHUMKATTIL HOUSE, MUTTOM P.O., THODUPUZHA, IDUKKI DISTRICT-685 587. 8. RESMIPRABHA P., AGED 31, LAKSHMI NIVAS, S.N.PURAM P.O., PAMPADY, PIN-686 502. 9. REJITHA.P.N., AGED 26, PLATHOTTATHIL HOUSE, AKG ROAD, MOOLAMATTOM P.O., IDUKKI DISTRICT. Kss ..2/- ...2.... WPC.NO.22828/2009 W 10. GEETHALAKSHMI T.R., AGED 32, THAYIL HOUSE, KUDAYATHOOR P.O., KUDAYATHOOR, IDUKKI DISTRICT-685 590. 11. SREEJA.N., AGED 31, KANDATHIPARAMBIL HOUSE, KUDAYATHOOR P.O., KALAPRA, IDUKKI DISTRICT, PIN-685 590. 12. SATHIMOL.B., AGED 36, KONDATHU HOUSE, KUDAYATHOOR P.O., THODUPUZHA, IDUKKI DISTRICT-685 590. BY ADVS. SRI.T.RAMPRASAD UNNI, SMT.SMITHA GEORGE. RESPONDENT(S): --------------------------- 1. THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSIN, PATTOM, THIRUVANANTHAPURAM. 3. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION THODUPUZHA, IDUKKI. R1 TO R3 BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON 28/10/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.22828/2009 W APPENDIX PETITIONER'S EXHIBITS: P1: RELEVANT EXTRACT OF THE RANK LIST OF 512 PERSONS PUBLISHED BY THE KERALA PUBLIC SERVICE COMMISSION IN RESPECT OF THE IDUKKI DISTRICT. P2: COPY OF THE APPLICATION SUBMITTED BY SOME OF THE PETITIONERS BEFORE THE DISTRICT OFFICE, IDUKKI, OF THE KERALA PUBLIC SERVICE COMMISSION. P3: COPY OF THE JUDGMENT DTD. 25/03/2009 OF THIS HON'BLE COURT IN WP(C) NO.33228 OF 2008. P4: COPY OF THE REPRESENTATION DTD. 3/04/2009 SUBMITTED BY THE PETITIONERS BEFORE THE KERALA PUBLIC SERVICE COMMISSION. P5: COPY OF THE REPLY DTD. 16/07/09 SENT BY THE KERALA PUBLIC SERVICE COMMISSION TO EXT.P4. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.22828 of 2009-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2010. JUDGMENT The challenge is against the reply given by the Public Service Commission as per Ext.P5, whereby the request of the petitioners to enlarge the ranked list, has been rejected. 2. The circumstances leading to the dispute are the following: The petitioners were applicants for the post of Lower Division Typists in various departments in Idukki District. The written test was conducted on 12.8.2006 and a short list was published on 11.1.2007. According to the petitioners, the Public Service Commission had fixed a cut of mark of 58 for the written examination and a short list was published. Ext.P1 is the copy of the ranked list published by the Public Service Commission wherein the main list contained only 37 candidates. The petitioners were included in the supplementary list. It is pointed out that the main list was hardly sufficient for the requirements of the posts notified and even at the time of publication of the rank list, there were 85 vacancies. Some of the candidates including petitioners therefore approached this Court by filing W.P.(C) No.33228/2008 seeking for a direction to include sufficient number wpc 22828/2009 2 of candidates in the main list. By Ext.P3 judgment this Court directed the matter to be examined by the Commission itself, in the light of the decision of the Full Bench in Ravidas v. Public Service Commission (2009 (2) KLT 295 (FB)) Ext.P4 is the further representation submitted in the matter and Ext.P5 is the reply given. 3. Heard learned Senior Counsel for the petitioners Shri K. Ramakumar and Shri Alexander Thomas, learned Standing Counsel appearing for the Public Service Commission. 4. The petitioners mainly contend, by relying upon a decision of this Court in Ajayan v. State of Kerala (2006 (3) KLT 854) that the Commission was bound to include sufficient number of candidates in the main list. It is pointed out that at least three times the number of vacancies could have been taken as a pointer in publishing the main list. Reliance is also placed on the Full Bench decision of this Court in Ravidas's case (2009 (2) KLT 295 (FB)). It is pointed out that the list was got exhausted as sufficient number of candidates were not included. 5. Learned Standing Counsel for the Commission submitted that the decision in Ajayan's case (2006 (3) KLT 854) stands modified by the dictum laid down by the Full Bench. It is pointed out that the said decision wpc 22828/2009 3 has not indicated that the Commission should include a minimum number of candidates in the list. It is further pointed out that the principles stated in Ajayan's case (supra) that at least three to five times of the number of vacancies reported, should be taken as a criteria, need not be followed in all cases. Reliance is also placed on the decision of the Apex Court in State of U.P. v. Rafiquddin and others (1987 (Supp) SCC 401) to contend that if there is a subsequent notification issued by the Commission, the ranked list need not be kept alive. 6. By relying upon the counter affidavit filed by the Commission itself, learned Senior Counsel appearing for the petitioners submitted that actually 55 vacancies existed initially, but due to a mistake occurred in the District Office of the Public Service Commission, the vacancies were assessed as 17 only and that alone has contributed to the publication of the main list with only 37 candidates. Hence, the same is liable to be rectified. 7. The averments in the counter affidavit filed on behalf of the Commission show the following: At the time of publication of the probable list for selection of L.D. Typists, only 17 vacancies were found to be available with the Commission and the Commission prepared the probable list by including 61 candidates the main list, i.e. more than three times the wpc 22828/2009 4 number of vacancies available at that time with necessary supplementary lists. The lowest mark of the candidates included in the main list of the probable list is 58. 8. The ranked list for the post of L.D. Typists (various) in Idukki District was published on 5.12.2007 by including 37 candidates in the Main List, 65 in the supplementary list and 11 under List II (By transfer category). Later one candidate each was included in the Main list and supplementary Ezhava list by issuing addendum notification dated 1.4.2008 and 10.6.2009 respectively. Thus, the ranked list consisted of 38 candidates in the Main list, 66 in the Supplementary lists and 11 in List II. A total number of 113 candidates who were included in the Probable list and subsequently found to be not qualified were excluded from the ranked list. The total number of vacancies reported up to the date of finalisation of the ranked list were 86 and the number of advices made from the ranked list were 51. The date of exhaustion of the ranked list is 25.1.2008. The number of pending unadvised vacancies as on the date of exhaustion was 43. There are 76 vacancies reported upto 31.10.2009. Fresh notification for the post was published in the Kerala Gazette on 29.5.2009 and examination is not fixed by the Commission in response to the said notification. It is further averred in page 3 of the counter affidavit that on the basis of the reply affidavit filed wpc 22828/2009 5 by the petitioner in W.P.(C) No.6001/2007 that availability of 17 vacancies only is wrong, the report of the District Officer, Idukki had been called for, the reply to which was that 55 vacancies were pending as on 18.9.2006, the date on which the proforma for selection was sent to the Commission for deciding the number of candidates to be included in the ranked list. But due to an inadvertent mistake on the part of the District Officer, the number of vacancies happened to be noted as 17. Therefore, the Commission explains that the orders of the Commission to include 61 candidates in the main list and necessary supplementary lists was on the basis of the report of the District Officer, Idukki to the effect that there existed only 17 vacancies for the post. The fact that at the time of sending the proforma for selection on 18.9.2006 there existed 55 vacancies instead of 17 came to the notice of the Commission only when the District Officer intimated the fact in response to the report called for on the affidavit filed by the petitioner in W.P.(C) No.6001/2007. Finally, it is pointed out that any decision to enlarge the exhausted rank list will prejudicially affect the rights of those who applied in response to the fresh notification. 9. Thus, the following facts are evident. The decision by the Commission to include 61 candidates in the main list was really prompted by the fact that only 17 vacancies were assessed as available at the time of wpc 22828/2009 6 preparation of the probable list. Actually this was a mistake. 55 vacancies were pending as on 18.9.2006. 10. Learned Senior Counsel for the petitioners therefore contended that since there was a mistake on the part of the Commission itself, the candidates cannot be denied the benefit, i.e. consideration of their candidature in respect of the vacancies as reported. It is therefore submitted that the list has to be enlarged. 11. In Ajayan's case (2006 (3) KLT 854) the Division Bench in para 9 considered various aspects. Therein, it was held that the Commission did not consider the fact that three to five times of the number of vacancies which may occur during the currency of the list has to be included in the ranked list. Accordingly, the Division Bench directed the Public Service Commission to consider anticipated vacancies also and then refix the number of persons to be called for interview. The Division Bench further directed the Commission to assess the vacancies that may arise during the currency of the list in a reasonable manner and shortlist the candidates at least three times the number of vacancies in the order of merit without fixing cut off marks and complete the formalities and publish an additional list within two months time. 12. The Full Bench in Ravidas's case (2009 (2) KLT 295) approved wpc 22828/2009 7 the decision in Ajayan's case (2006 (3) KLT 854) to hold that the Commission cannot prescribe cut off marks to shortlist the candidates to be called for the interview in the absence of such a provision in the rules or in the notification. In para 38, the Full Bench examined the guidelines for preparation of the shortlist and ranked list in Circular No.17/1987 dated 4.7.1987 which was modified by Circular No.30/2003 dated 1.12.2003 Para 1 of Circular dated 1.12.2003 is relevant here, which is extracted below: “1. The number of candidates to be included in the Short Lists and Ranked Lists should not be decided mechanically. Commission will decide the number to be included in each case considering the number of vacancies reported, number of candidates advised from the previous list, nature of the post and chances of occurrence of vacancies. The number of candidates to be included in the supplementary list of reservation group of communities will also be decided by the Commission in each case considering where the rotation stands and the number of turns such as NJD/NCA/TPO etc. to be satisfied, of course bearing in mind that reservation communities should not lose their turn due to the paucity of candidates.” Going by the same, the Commission will decide the number of candidates to be included in each case “considering the number of vacancies reported, wpc 22828/2009 8 number of candidates advised from the previous list, nature of the post and chances of occurrence of vacancies.” Therefore, the Commission will have to include the number of candidates in the main list of the short list by considering the number of vacancies reported among other matters. In para 42, the Full Bench then considered the question whether all the vacancies arising over a period of 3 years should be considered for fixing the number and it was held that “the Commission decides on the number of candidates to be included in the ranked list based on the vacancies actually reported to them and where the vacancies do not exist and are not reported, based on vacancies anticipated to arise.” After applying the above principle, in para 49 the Full Bench found that in respect of various lists, the Commission had included sufficient number of candidates in the main list and supplementary lists. My attention was invited by the learned Standing Counsel for the Commission to para 49 of the decision of the Full Bench to submit that the method adopted by the Commission in those cases, was approved by the Full Bench. 13. True that the Full Bench in Ravidas's case (supra) had analysed the number of candidates to be included in various lists, while considering the merits of those cases. But one of the aspects considered by the Full Bench evidently was that even in Circular No.30/2003 dated 1.12.2003 as wpc 22828/2009 9 per para 1 the Commission will have to decide the number to be included in each case considering the number of vacancies reported, number of candidates advised from the previous list, nature of the post and chances of occurrence of vacancies. Of course, the Full Bench was of the view that in the light of the decision of the Apex Court in Ashok Kumar Yadav and others v. State of Haryana and others {(1985) 4 SCC 417}, generally speaking, the shortlist has to be prepared as per the method provided in the Circular of the year 2003, and the short listing is not really by prescribing a cut off mark as such. It depends upon the material available in each case and it need not be a minimum of 3 to 5 times of the number of vacancies reported, in all situations. 14. But, it will be a safe method to fix the number based on the number of vacancies reported, going by Circular No.30/2003. By applying the said principle to the facts of this case and going by the facts admitted in the counter affidavit filed by the Commission, it will be clear that the method adopted by the Commission was wrong. 61 candidates were sought to be included in the main list by taking the vacancies as 17, i.e. more than three times the number of vacancies available. But it was a mistake as actually 55 vacancies were pending as on 18.9.2006. Therefore, three times wpc 22828/2009 10 the number of vacancies reported was not obviously taken and only 37 candidates were included in the main list of the ranked list which resulted in the main list getting exhausted. The ranked list thus got exhausted on 25.9.2008 and the number of pending unadvised vacancies as on the date of exhaustion was 43. 15. It is true that the Commission has published a fresh notification even though no test has been conducted already and it is averred that the mode is yet to be fixed for selection. Even though learned Standing Counsel for the Commission submitted that any decision to enlarge the exhausted rank list will affect the candidates who have applied pursuant to the present notification and heavy reliance was placed on the decision of the Apex Court in Rafiquddin's case (1987 (Supp) 4 SCC 401), this is a case where there was actually a mistake on the part of the District Officer, Idukki in limiting the vacancies to 17 whereas the number of vacancies reported was actually 55. The principles stated in Rafiquddin's case (1987 (Supp) 4 SCC 401), in para 16 shows that the Apex Court in that case, was of the view that “the list prepared by the Commission on the basis of the competitive examination of a particular year could be utilised by the government for making appointment to the service before the declaration of wpc 22828/2009 11 the result of the subsequent examination.” It was also held that “if selected candidates are available for appointment on the basis of the competitive examinations of subsequent years, it would be unreasonable and unjust to revise the list of earlier examination by changing norms to fill up the vacancies as that would adversely affect the right of those selected at the subsequent examination in matters relating to their seniority under Rule 22.” 16. The facts of the case show that the Apex Court was considering a case where examinations were conducted in 1970 and 1972. Based on the same, initially the Commission submitted a list of approved candidates to the Government on October 25, 1971 recommending the names of 46 candidates which was the first list of 1970 examination. This was followed by a second list. But long after that, a third list of unplaced candidates from 1970 examination was prepared, after the candidates of the 1972 examination were appointed to the service. They claimed seniority over the persons recruited to service in pursuance of 1972 examination. It is in that context, in para 16 the above observations were made by the Apex Court. It was found that there is no express provision in the rules as to what period the list prepared under Rule 19(1) can be utilised for making appointment to the service. Herein, there are specific rules with regard to the validity of the list. Here, the list will be valid for a period of three years, going by Rule 13 wpc 22828/2009 12 of the rules, viz. the Kerala Public Service Commission Rules of Procedure. Therefore, the observations of the Apex Court above are clearly distinguishable. 17. The learned Standing Counsel then submitted that a candidate has no indefeasible right to get appointment. True, but a candidate has got a right to be considered for appointment, which cannot be denied by any action which is arbitrary. Herein, Ext.P3 judgment is dated 25.3.2009, whereby the Public Service Commission was directed to consider the objections raised by the petitioners. The present notification is only issued much later, i.e. on 29.5.2009. It cannot defeat the right of candidates like petitioners, as no other ranked list is there. 18. Therefore, evidently the mistake made by the District Officer had contributed to the limiting of the number of candidates in the main list as 37. Actually going by the vacancies reported, 55 vacancies were available as noted already. In that view of the matter, the method adopted by the Commission is really faulty and therefore the benefit should go to the candidates like the petitioners. Power available to correct mistakes by a public authority is well recognised. In V.V. Prakasini v. Kerala Public Service Commission & others (1993 (1) KLJ 632) it was held that public wpc 22828/2009 13 authority has power to correct apparent mistakes even without a specific provision. It was held that “such a reserve power to correct mistakes committed by itself has to be located in every public authority in the interest of justice and to avoid arbitrariness.” This is so when rights of third parties are involved. Here, the mistake led to the taking of an action on a wrong basis which has evidently to be substituted. 19. Even if the list got exhausted, that will not prevent enlargement of the list, as the three year period is not over so far. The three year period will be over only by 4.12.2010. None of these aspects have been considered while giving a reply as per Ext.P5. In Ext.P5, the only reason stated is that a probable list was published by including four times of the number of candidates and many of the candidates were not having the qualification. Since the Commission is bound by its own circular and as the mistake of the District Officer alone has contributed to the situation which resulted in only 37 candidates being included in the main list, Ext.P5 cannot be supported. 20. Therefore, Ext.P5 is quashed. There will be a direction to the Public Service Commission to enlarge the list by including sufficient number of candidates in the main list in the light of the vacancies reported and accordingly an additional list will be published within a period of three weeks from today, and candidates will be advised for the vacancies wpc 22828/2009 14 reported accordingly. The same shall be done before 4.12.2010. It is made clear that the petitioners and similarly placed persons, even if are shortlisted and advised, will not be entitled to get any seniority over the persons who were already listed and appointed. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/