IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WA.No. 282 of 2008() ----------------------------- W.P.(C) NO.3040/2008 ON THE FILE OF THE LEARNED SINGLE JUDGE OF THIS HONOURABLE COURT. ...... APPELLANTS: -------------------- 1. BENNY LALU.M.L., MUNAMPEL JOSE COTTAGE, KARALI JUNCTION (PO) SASTHAMCOTTA 690 543. 2. BIJU.U, JEEJA BHAVAN, NEENDAKARA P.O., KOLLAM. 3. ASOK KUMAR.P., SUMATHY SADANAM MEENADU, NEDUNJOLAM P.O.,KOLLAM. 4. DHWIJESH,S/O.SAMBAN KAZHUKANTHURUTH HOUSE, AZHEEKKAL P.O., PRAYAR VIA, KOLLAM, PIN 690 547 5. K.S.SELVARAJ, KULAKANDATHIL, MANNANI P.O., NORTH PARAVUR. 6. ASHOKA KUMAR,S/O.K.VASUDEVAN ASHOKA BHAVANAM, S.R.P.MARKET P.O. THAZHAVA, KOLLAM PIN 690 539. 7. SUNIL V.R.AMBATTUKUNNEL KANNIMANGALAM, NADUVATTOM P.O., KALADY. 8. LAIJUMON, C.V., CHERUVALLIPPADY HOUSE ASAMANNOOR P.O., NOOLELI ERNAKULAM 683 549. BY ADV. SRI.N.N.SUGUNAPALAN (SR.) W.A. NO.282/2008 RESPONDENT: --------------------- 1. STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT HOME DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION REP. BY THE SECRETARY, O/O P.S.C PATTOM THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.BENNY GERVACIS SRI.ALEXANDER THOMAS, SC. KPSC THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2008, ALONG WITH WA. NO.403 OF 2008, WA. 302 OF 2008 AND WP(C) NO.28153 OF 2008 THE COURT ON 15/10/2008 DELIVERED THE FOLLOWING: J.B. Koshy & K.P. Balachandran, JJ. -------------------------------------- W.A. Nos.282, 302 & 403/2008 and W.P.(C) No.29153 of 2007-U --------------------------------------- Dated this the 15th day of October, 2008 Judgment Koshy,J. In all these cases, writ petitioners were included in the rank list published by the Public Service Commission for the post of Sub Inspector of Police (General Executive Branch) (Trainee). The rank list is produced as Ext.P1 in W.P.(C) No.18624 of 2007 which was published on 19.8.2006. The above rank list is prepared after due selection process conducted in pursuance of notification dated 16.12.2003 produced as Ext.P1 in W.P.(C) No.3040 of 2008. The said rank list was valid for one year from the date of publication. Since the post in question is one to which appointment is preceded by a mandatory training course, the rank list has validity of one year from the date of its finalisation or one month from the date of commencement of training of the last batch selected from the list within the said period of one year whichever is later in terms of first proviso to rule 13 of the Kerala Public Service Commission Rules of Procedure (for short 'PSC Rules'). Thus, one year period of validity W.A. Nos. 282, 302 & 403/2008 and W.P.(C) No.29153/2007 2 in so far as the rank list is concerned should normally expire on 18.8.2007. But, the list will remain valid for a period of one month from the commencement of the training of the last batch. According to the petitioners, 16 candidates for which vacancies were notified during the currency of rank list were advised on 21.8.2007 and their training commenced on 1.1.2008. Selection process is over as soon as they are included in the ranked list. Their vacancies were reported much before 18.8.2007. Since their vacancies were reported much before 18.8.2007, within one year period and their training commenced from 1.1.2008, the list will expire only with effect from 1.2.2008. 57 promotions were effected to the post of Circle Inspector of Police from the post of Sub Inspector of Police by notification dated 28.12.2007 as can be seen from the Kerala Gazette dated 8.1.2008. Out of the said 57 promotees, 51 were direct recruits. Therefore, it is contended that over and above the anticipated vacancies, the said 51 vacancies of S.I. of Police also occurred within the validity period of rank list. In fact, Government has reported 49 anticipated vacancies also during the currency of the rank list. But, PSC refused to advise candidates to those reported vacancies as those vacancies will occur only in 2008. The list of promotees and gazette notification containing the list of W.A. Nos. 282, 302 & 403/2008 and W.P.(C) No.29153/2007 3 promotees from the rank of Sub Inspector of Police to the post of Circle Inspector of Police is produced as Annexure VIII in W.A.No.403 of 2008. Their promotions were regularised by Government Order dated 24.4.2008 (Annexure A-IV in W.A.No.302 of 2008). Their effective date of promotion mentioned in the Government Order shows that 39 vacancies (for direct recruitment in open quota) in the post of S.I. of Police have arisen even prior to 18.10.2007 and, therefore, it is contended that 39 vacancies actually occurred prior to 18.10.2007. If that be so, 49 anticipated vacancies reported by the Government were to the actual vacancies that occurred during the currency of the rank list. 2. The contention of the PSC is that even though 16 vacancies were reported prior to 25.6.2007, the 16 candidates from the rank list were actually advised by the PSC only on 21.8.2007. Since the normal period of one year expired on 18.8.2007, commencement of their training period cannot be taken into account for extension of the validity period of rank list for a further period of one month. In this connection, we refer to rule 13 and its first proviso of the Kerala Public Service Commission Rules of Procedure which is as follows: "13. The ranked lists published by the Commission shall remain in force for a period of W.A. Nos. 282, 302 & 403/2008 and W.P.(C) No.29153/2007 4 one year from the date on which it was brought into force provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years whichever is earlier: Provided that the above rule shall not apply in respect of ranked lists of candidates for admission to Training Course that leads to automatic appointment to services or posts and that in such cases the ranked list shall cease to be in force after one year from the date of finalisation of the ranked lists or after one month from the date of commencement of the course in respect of the last batch selected from the list within a period of one year from the date of finalisation of the ranked lists whichever is later:" The method of appointment for the post of Sub Inspector of Police is contained in Government Order G.O.(P) No.196 of 1995 dated 26.7.1995. The said order (Special Rules) provides that 50% of the vacancies in the post of Sub Inspector of Police (General Executive Branch) (Trainee) is to be filled up by promotion from among Assistant Sub Inspectors and 50% by direct recruitment. The Special Rules provide for direct recruitment from three categories: One is from open market and 80% out of the 50% set apart for direct recruitment will have to be filled up by the candidates from the open category. Category (2) consists of the ministerial staff of Police, Vigilance Department, Finger Print Experts of the Finger Print W.A. Nos. 282, 302 & 403/2008 and W.P.(C) No.29153/2007 5 Bureau and 10% of 50% of the total cadre strength is available thereunder. Category (3) comprises of graduate police constable, head constables and officers of corresponding rank in the police department and the remaining 10% of the 50% is available for the said category. We are concerned only with the first category. Therefore, 80% of the 50% available for direct recruitment has to be filled up from open candidates in pursuance to Ext.P1 notification. 50% is to be calculated on the basis of cadre strength of Sub Inspector of Police (General Executive Branch). There were disputes regarding the cadre strength. According to the petitioners 50% of the cadre strength of Sub Inspectors (General Executive Branch) is 783. The learned single Judge, after considering the contentions filed, found that the number of vacancies available to be filled up by direct recruitment is 695. It is stated in the counter affidavit filed by the Government that the existing strength of Sub Inspector of Police was 455. 245 vacancies were reported on various dates by the Government. Thus, about five candidates were advised in excess of the quota though there will be some non-joining vacancies. 3. The following vacancies were reported subsequent to the publication of the rank list: W.A. Nos. 282, 302 & 403/2008 and W.P.(C) No.29153/2007 6 "75 vacancies : 26.10.2006 155 vacancies : 04.12.2006 7 vacancies : 28.03.2007 8 vacancies : 25.06.2007." Thus, 245 actual vacancies were reported by the Government. Government also reported 49 anticipated vacancies on 29.6.2007. Thus, vacancies were reported because even though substantial vacancies of Sub Inspector of Police will arise in early 2008, the persons who are advised will have to be given training for six months. Therefore, steps should necessarily be taken for appointment by training and here the notification is not for the actual vacancies of Sub Inspector of Police, but, Sub Inspector trainees. So, to fill up those vacancies of Sub Inspectors who were to be promoted in January, 2008, trainees have to be advised six months before the actual occurrence of vacancies. That is why government reported 49 anticipated vacancies, but, PSC did not advice candidates to those vacancies stating that they are anticipated vacancies. Apart from the above 49 vacancies reported by the Government, 30 vacancies were reported provisionally on the basis of the interim directions of this Court in W.P.(C) No.27903 of 2007 and another 30 vacancies were also reported on the basis of the directions in W.A.No.2038 of 2007. Even though those 60 W.A. Nos. 282, 302 & 403/2008 and W.P.(C) No.29153/2007 7 vacancies were reported during the currency of the list as directed by the Court, those vacancies were subject to the final decision in the writ petition. Even without a direction of the court, 49 anticipated vacancies reported by the Government were also not advised. So, there are actual vacancies for appointment of Sub Inspector (trainees) in the 50% quota reserved for Sub Inspectors for direct recruitment during the currency of the rank list itself and PSC is bound to make advice them. Rule 14 of the PSC Rules states as follows: "14. The Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive in the order of priority, if any, and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable: Provided that the advice of candidates by the Commission from the ranked lists kept alive under the fifth proviso to Rule 13, shall be confined to the vacancies that actually arose during the normal period of validity of the ranked lists under Rule 13 and certified to be as such by the appointing authorities reporting vacancies to the Public Service Commission." The condition is that PSC can advice only to the vacancies reported during the currency of the list. The learned single Judge found that the number of vacancies available to be appointed by direct W.A. Nos. 282, 302 & 403/2008 and W.P.(C) No.29153/2007 8 recruitment is 695. Excluding the 49 anticipated vacancies reported by the Government, balance actual vacancies reported was 245. According to the counter affidavit filed by the Government, considering the existing strength of direct recruitment of 245 is added, there will be excess hands than the quota fixed for direct recruitment. But, if we take into account the promotions effected in pursuance of the notification dated 28.12.2007, there will be further 51 vacancies. Out of the 57 promotees, 51 Sub Inspectors of General Executive Branch from open quota were promoted. But, going by the actual promotion orders from which details of their promotion post are also ascertained, it can be seen that 39 vacancies of Sub Inspectors (General Executive Branch) in the open quota arose prior to 18.10.2007 during the validity of the list. In any event, Government themselves reported 49 anticipated vacancies. Taking into account the fact that the Sub Inspectors selected and ranked after advice has to undergo six months' training, only after six months they can be absorbed. Therefore, the training should commence six months prior to the date of arising of substantial vacancy and that was the employer's need. We have seen that notification inviting applications was published in 2003. Ranked list was published only in August, 2006 after three years. Written test, W.A. Nos. 282, 302 & 403/2008 and W.P.(C) No.29153/2007 9 practical test, eligibility test (physical fitness test) etc. took a long time for finalisation of the list. Without sufficient number of Sub Inspectors, the police department cannot function properly and, therefore, PSC ought to have advised 49 candidates more in the 49 anticipated vacancies reported by the Government during the currency of the list even without an interference from the court. The notification was for selection of Sub Inspector (Trainees) and those who are selected have to undergo training for six months. Then only they will be appointed in the post of Sub Inspectors. Therefore, actual vacancies of Sub Inspector (Trainees) will arise six months prior to the actual promotion of Sub Inspector to the post of Circle Inspector of Police in January, 2008. Thus, for appointment of trainees to the post arose during the currency of the rank list and we are of the pinion that PSC went wrong in not advising candidates for the 49 anticipated vacancies reported by the Government. But, we have seen that due to promotion, there are 39 vacancies of Sub Inspectors (General Executive Branch) direct recruitment in the open quota arose even before 21.8.2007 before the expiry of the rank list (within the one year period). Therefore, PSC is bound to advise at least 39 candidates from the reported vacancies during the currency of the rank list under the open quota. W.A. Nos. 282, 302 & 403/2008 and W.P.(C) No.29153/2007 10 4. Apart from the above, we are of the view that first proviso to rule 13 clearly provides that the rank list will continue to be in force till training of the last batch of selected candidates start. Last batch of selected candidates during the currency of the list was sent for training only on 1.1.2008. Once the rank list is prepared, there is no further selection. The function of the PSC thereafter is only to advice the candidates from the select list according to the vacancies reported subject to rules of reservation. Written test, practical test, interview and all required for the selection took place earlier. So, the last batch selected for the actual vacancies reported during the currency of the list within one year were sent for training only on 1.1.2008. So, the list will expire only on 1.2.2008. Since actual promotions of 59 Sub Inspectors of Police were effected before the expiry of the list by Government notification dated 28.12.2007 and out of the promotees, 39 vacancies are direct recruits of General Executive branch allotted to the open candidates (80% of the 50% categories), we are of the opinion that PSC ought to have advised at least 39 candidates more from the list, if not 49, as anticipated by the Government. Since the vacancies were already reported before the expiry of the list and the vacancies actually occurred before the expiry of the list and considering the W.A. Nos. 282, 302 & 403/2008 and W.P.(C) No.29153/2007 11 fact that they have to be given further training for six months, we are of the opinion that PSC shall advice 39 candidates more on the open quota from the ranked list subject to the rules of reservation etc. as per law within one month from today. All the writ appeals and the writ petition are disposed of accordingly. J.B.Koshy Judge K.P. Balachandran Judge vaa W.A. Nos. 282, 302 & 403/2008 and W.P.(C) No.29153/2007 12 J.B. KOSHY AND K.P.Balachandran,JJ. ------------------------------------- W.A. Nos.282, 302 and 403/2008 and W.P.(C) No.29153/2007-U ------------------------------------- Judgment Date:15th October,2008