IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 16990 of 2008(V) -------------------------- PETITIONER(S): --------------- SHEEBA JOSEPH T.SANKOORICKAL HOUSE, ANNAMANADA PO., PIN 680741,THRISSUR DISTRICT. BY ADV. SRI.M.RAJASEKHARAN NAYAR RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANDAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANDAPURAM. 3. THE TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONRATE, THIRUVANANDAPURAM. 4. ARUN.C.D., ASSISTANT MOTOR VEHICLE INSPECTOR, O/o. REGIONAL TRANSPORT OFFICER, ERNAKULAM. (ADDL.R4 IS IMPLEADED VIDE ORDER DATED 22.9.2008 IN I.A.11941/2008) BY ADVOCATE GENERAL SRI.C.P.SUDHAKARA PRASAD GOVERNMENT PLEADER SRI. P.NANDAKUMAR BY SRI.ALEXANDER THOMAS, SC FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 7/01/2010, THE COURT ON 17/05/2010 DELIVERED THE FOLLOWING: WP(C).No. 16990 of 2008(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE RANK LIST OF ASSISTANT MOTOR VEHICLE INSPECTORS. EXT.P2: TRUE COPY OF THE APPOINTMENT CHART AS ON 17.12.2005. EXT.P3: TRUE COPY OF THE APPOINTMENT CHART AS ON 17.07.2006. EXT.P4: TRUE COPY OF THE APPOINTMENT CHART AS ON 25.3.2008. EXT.P5: TRUE COPY OF THE PROCEEDINGS DATED 29.05.2008, ISSUED BY PSC. // TRUE COPY // TKS P.N.RAVINDRAN, J. ---------------------------- W.P.(C)No.16990 of 2008 ---------------------------- Dated this the 17th day of May, 2010 JUDGMENT The petitioner was an applicant for appointment by direct recruitment to the post of Assistant Motor Vehicles Inspector in the Motor Vehicles Department. She was selected and her name was included in Ext.P1 ranked list published by the Kerala Public Service Commission on 6.12.2005. The petitioner is rank No.7 in the supplementary list of Latin Catholic/Anglo Indian candidates in Ext.P1 ranked list. Relying on Ext.P2 appointment chart, the petitioner states that as on 17.12.2005, 103 candidates had been appointed from Ext.P1 ranked list. It is stated that applying rules 14 to 17 of Part II of the Kerala State & Subordinate Services Rules, 1958, four candidates ought to have been appointed from the supplementary list of Latin Catholic/Anglo Indian candidates. The petitioner states with reference to Ext.P2 appointment chart that the fourth respondent herein who is rank No.67 in the main list should have been selected against open competition turn and not in the reservation turn and that in his place Sri.Joshy.T.X., rank No.1 in the supplementary list of Latin Catholic/Anglo Indian candidates WP(C).No.16990/2008 2 ought to have been advised. The petitioner contends that instead, Sri.Joshy.T.X. was advised as serial No.45 in Ext.P2 appointment chart. She contends that though five Latin Catholic/Anglo Indian candidates including rank No.5 in the supplementary list of Latin Catholic/Anglo Indian candidates had been advised by 17.7.2006, it is inclusive of the vacancy given to Sri.Arun.C.D. who ought to have been advised in the open competition turn. She also contends that applying the rules of reservation, the Kerala Public Service Commission ought to have advised candidates up to rank No.5 in the supplementary list of Latin Catholic/Anglo Indian candidates by 17.12.2005. On that ground she further contends that when subsequent advices were made on 17.7.2006 and 25.3.2008, two more Latin Catholic/Anglo Indian candidates ought to have been advised and if that had been done, the petitioner who is rank No.7 in the supplementary list of Latin Catholic/Anglo Indian candidates would have been advised. She also contends that a large number of vacancies of Assistant Motor Vehicles Inspector were filled up by appointment by transfer from the ministerial staff of the department who do not possess the prescribed working experience and if they are reverted, vacancies against which direct recruitment can be made will arise. She contends relying on Ext.P5 communication issued from the Transport Commissionerate that WP(C).No.16990/2008 3 eight vacancies of Assistant Motor Vehicles Inspector including one vacancy that had arisen following the suspension of an incumbent exist in the Motor Vehicles Department, that altogether there are 22 vacancies and that if those vacancies are reported, the petitioner will get advice even if the error in following the rules of communal rotation is not rectified. On these grounds, the petitioner seeks a writ in the nature of mandamus commanding the Kerala Public Service Commission to issue advice memo to her. She also seeks a direction to the Kerala Public Service Commission to rectify the error in following the rules of communal rotation while advising the candidates from Ext.P1 ranked list and a further direction to the State of Kerala and the Transport Commissioner to report all existing vacancies to the Kerala Pubic Service Commission. 2. A counter affidavit dated 15.7.2008 has been filed on behalf of the third respondent wherein it is stated that only eight regular vacancies of Assistant Motor Vehicle Inspector are in existence and that the contention of the petitioner that 22 vacancies exist is without any merit. Relying on Note II to rule 5 of the Kerala Transport Subordinate Service Rules, 2008 it is contended that though this Court had in W.A.No.1356 of 2007 and connected cases directed reversion of those Assistant Motor WP(C).No.16990/2008 4 Vehicles Inspectors who were appointed by transfer from among the ministerial staff of the department, but did not possess one year working experience before acquiring the basic educational qualification, no reversion took place in view of the change in the rules. 3. The Kerala Public Service Commission has filed an affidavit dated 17.10.2008 wherein it is stated that out of the 140 candidates advised for appointment by direct recruitment from Ext.P1 ranked list, six candidates belong to the Latin Catholic/Anglo Indian community. The turn against which the said six Latin Catholic/Anglo Indian candidates were advised is also set out. The Commission has however stated in paragraph 5 of the affidavit that advice is pending against 22 vacancies reported by the department. The Commission has denied the petitioner's contention that the communal rotation was not correctly applied while making advices. 4. When this writ petition came up for hearing on 20.11.2008, this Court passed an interim order directing the Kerala Public Service Commission to advise candidates against the said 22 vacancies. This Court also directed the Commission to follow the dictum laid down by a Division Bench of this Court in Kerala Public Service Commission v. Beermasthan (2008 (2) KLT 797) while advising the candidates against the said 22 vacancies. WP(C).No.16990/2008 5 The decision of the Division Bench of this Court in Kerala Public Service Commission v. Beermasthan (supra) was reversed by the Apex Court by judgment delivered on 30.3.2009 in Nair Service Society v. Beermasthan (2009 (2) KLT 123). Thereupon, the learned single Judge vacated the interim order passed by this Court on 20.11.2008 and directed that the writ petition be posted for hearing. 5. With reference to the petitioner's contention that the communal rotation has not been correctly applied while applying the rules of communal reservation, the Commission has stated that Sri.Arun.C.D. rank No.67 in the main list was advised against the passed over turn of a Latin Catholic candidate and that rank Nos.1 to 4 in the supplementary list were advised against the 68th, 94th, 8th and 22nd turns and as rank No.3 advised against the 8th turn did not join duty, rank No.5 was advised in that Non Joining Duty vacancy. It is evident from the counter affidavit filed by the Commission that Arun.C.D., rank No.67 was advised against a passed over turn reserved for Latin Catholic/Anglo Indian community. The said advice cannot be said to be illegal. The passed over turn has to be filled up before the rotation is worked out and as on 17.12.2005, his turn for advice in open competition turn had not arisen. Further, this writ petition is filed mainly WP(C).No.16990/2008 6 relying on the decision of the Division Bench of this Court in Kerala Public Service Commission v. Beermasthan (2008 (2) KLT 797). As noticed earlier, the decision of the Division Bench of this Court in Kerala Public Service Commission v. Beermasthan (supra) was reversed by the Apex Court by judgment delivered on 30.3.2009 in Nair Service Society v. Beermasthan (2009 (2) KLT 123). In the light of the subsequent decision of the Apex Court, the petitioner cannot rely on the decision of the Division Bench of this Court in Kerala Public Service Commission v. Beermasthan (supra) to contend that the communal rotation has not been correctly worked out while advising candidates. I therefore find no error in the advice of Sri.Arun C.D. in the turn reserved for Latin Catholic/Anglo Indian candidates. I am therefore of the considered opinion that there is no merit in the contentions raised by the petitioner. 6. From the pleadings and the materials on record it is evident that the ranked list in question ceased to be in force on 5.12.2008. Prior to that date, 22 vacancies were pending advice by the Kerala Public Service Commission. The Commission has in paragraph 5 of the additional affidavit dated 17.10.2008 admitted the said fact. Therefore, notwithstanding the expiry of the ranked list on 5.12.2008, the Commission will have to advise candidates WP(C).No.16990/2008 7 included in Ext.P1 ranked list against the said 22 vacancies, if till date, such advice has not been made. As the Commission has in the affidavit dated 17.10.2008 stated that advice of candidates included in Ext.P1 ranked list against 22 vacancies is pending, all that the petitioner can ask for is a direction to the Commission to advise candidates against the 22 vacancies reported to the Commission prior to the expiry of the ranked list, if candidates have not been advised against the said 22 vacancies till date. I accordingly dispose of this writ petition with a direction to the Kerala Public Service Commission to advise candidates included in Ext.P1 ranked list against the 22 vacancies of Assistant Motor Vehicles Inspector referred to in paragraph 5 of the affidavit dated 17.10.2008, if till date, candidates have not been advised against the said vacancies. Necessary steps in that regard shall be taken within one month from the date on which the petitioner produces a certified copy of this judgment, before the Secretary, Kerala Public Service Commission. P.N.RAVINDRAN Judge TKS