IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE KURIAN JOSEPH WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WA.No. 2422 of 2008() --------------------- AGAINST THE ORDER IN RP.979/2007 Dated 07/12/2007 AND THE JUDGMENT IN WP(C) No.36638/2004 DATED 31/03/06 .................... APPELLANT/PETITIONER: --------------------------- SAJEEV KUMAR.P.V., S/O.P.K.VASU, 32 YERS, PADINJARATHADATHIL, NELLAR, MUVATTUPUZHA. BY ADV. SRI.O.D.SIVADAS RESPONDENTS/RESPONDENTS: ---------------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. ASSISTANT EXCISE COMMISSIONER, ERNAKULAM 3. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, THULASSI HILL, PATTOM PALACE PO., THIRUVANANTHAPURAM. 4. DISTRICT OFFICER, KPSC, DISTRICT OFFICE, ERNAKULAM. R1 & R2 BY SR. GOVT. PLEADER, SMT.K. MEERA R3 & R4 BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & Kurian Joseph, J. ------------------------------------------ W.A.No.2422 of 2008 ------------------------------------------ Dated, this the 22nd day of July, 2009 JUDGMENT Kurian Joseph, J. The writ petitioner is the appellant. The writ petition was filed for a direction to the second respondent to report all available vacancies of Excise Guards in Ernakulam District to the Public Service Commission. The ranked list expired on 31.12.2004. It is not in dispute that the department had not reported any vacancy to the Public Service Commission prior to the expiry of the ranked list on 31.12.2004 and against which advice memo was not issued. Thus the emerging factual position is that in respect of all the substantive vacancies reported to the Public Service Commission prior to the expiry of the ranked list on 31.12.2004, advice memos have been issued and the department appointed them. It is the contention of the appellant/petitioner that there were vacancies available and that the stand taken by the department is not correct. The learned Single judge W.A.No.2422 of 2008 - 2 - dismissed the writ petition by judgment dated 31st March, 2006 on the ground that on facts the writ petition had become infructuous. An attempt for review of the judgment also ended in rejection as per order dated 7th December, 2007 in R.P.No.979 of 2007. 2. The learned counsel appearing for the appellant inviting our attention to the decision of the apex Court in the case of State of U.P. v. Ram Swarup Saroj reported in (2000) 3 SCC 699, submits that merely because the ranked list had expired, the claim of an otherwise eligible candidate cannot be refused to be considered. We are afraid this contention cannot be appreciated. That was a case in which the apex Court had taken note of in the order that there were 231 vacancies available for appointment in the cadre of Munsiff-Magistrate at the relevant time. Referring to the inaction on the part of the State in not taking steps to make appointments, the apex Court upheld the view taken by the High Court of Allahabad in issuing the direction to make appointments from the ranked list in respect of the vacancies available. In the instant case, there is serious dispute as to the availability of the vacancy itself. The stand taken by the department is that there was no W.A.No.2422 of 2008 - 3 - reportable vacancy as on the date of the expiry of the ranked list. Though an attempt is made by the learned counsel for the appellant to establish otherwise, we are afraid, this Court will not be justified in entering an adjudication on those disputed facts at this stage, in view of the fact that no vacancy had been reported to the Public Service Commission prior to the expiry of the ranked list. Therefore, no effective relief can be granted to the writ petitioner/appellant and hence there is no point in issuing a futile writ. Therefore, the writ appeal is dismissed. S.R.Bannurmath, Chief Justice Kurian Joseph, Judge vns