IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 WA.No. 2382 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.23824/2008 .................... APPELLANT(S)/PETITIONER: --------------------------------------- RENUKA.N., D/O.M.SANKARANKUTTY, 28 YEARS R/AT.NEDUMPILLIL HOUSE, LAKSHMI NIVAS, KARINGAMTHURUTHU, KONGORPILLY PO., ERNAKULAM. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ RESPONDENT(S)/RESPONDENTS: --------------------------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 4. SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT. R. BINDU SRI.ALEXANDER THOMAS,SC,KPSC FOR R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2009, ALONG WITH WA NOS. 2440 OF 2008 & WA NO. 2425 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. Nos. 2382, 2440 & 2425 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2009. JUDGMENT Balakrishnan Nair, J, The appellants were the writ petitioners. They were the persons included in the rank list published by the Public Service Commission on 16.12.2005 for appointment to the post of Lecturer, Malayalam in the Collegiate Education Service. During the pendency of the rank list, they approached this court complaining that there are several vacancies in the cadre of Lecturer Malayalam and they are being manned engaging Guest Lecturers. So praying for a direction to the appointing authority to report those vacancies, the writ petitions were filed. The learned Single Judge disposed of the writ petition directing the Government to consider the claims of the petitioners regarding the existence of vacancies and take a decision. Regarding the nine vacancies specifically pointed W.A.2382, 2440 & 2425/2008. 2 out by the petitioners, the learned Single Judge found that one of those vacancies has already been reported to the Public Service Commission. One among the remaining vacancies is a suspension vacancy and that is not available in view of the reinstatement of the incumbent suspended. Seven out of the nine vacancies remaining were not vacancies in sanctioned posts. Noticing the same, the learned Single Judge observed as follows: “The petitioners cannot have any claim unless and until the posts are sanctioned before the expiry of the list and it is entirely for the Government to deal with the same and therefore I leave it at that.” 2. Now learned counsel for the appellants have brought to our notice that Government as per G.O.(MS) 168/09 H.Edn. dated 25.9.2009 sanctioned four posts of Lecturers in Malayalam in Government College, Nedumangadu, Government Women's College, Thiruvananthpauram, Government Victoria College, Palakkad and Government College, Chittoor . They contended that the sanction should relate back to the period when the PSC list was W.A.2382, 2440 & 2425/2008. 3 alive. If that be so, four vacancies so created can be filled up from the PSC list itself. 3. Learned Government Pleader brought to our notice a statement filed in W.A.2425 of 2008, wherein it was stated as follows: “The vacancies pointed out by the appellants it is submitted are non existent/non sanctioned posts. It is respectfully submitted that there are no sanctioned posts as stated by the appellants in any of the colleges pointed out by them. Though the work load in these colleges provide for additional posts (excluding Government College Kasargod where no additional posts can be sanctioned as per the existing workload) no post has been sanctioned by the Government. The additional workload was occasioned as a result of sanctioning of new courses in the above colleges but due to financial constraints and as per the Government policy, these courses were sanctioned without additional financial burden. Moreover the Government policy does not permit creation of new posts involving further financial commitment and Guest Lecturers are W.A.2382, 2440 & 2425/2008. 4 being engaged considering the necessity and requirements. It is respectfully submitted that only those vacancies can be reported to the Public Service Commission which are substantive in nature and non sanctioned/non existent posts cannot be reported to the Public Service Commission nor can any person included in the ranked list raise any claim as against a non existent vacancy. This Honourable Court as well as the Apex Court has on several occasions held that mere inclusion in the ranked list does not give rise to any claim or right for appointment and moreover no such claim can also be entertained after the expiry of the ranked list. As submitted herein before as against the two vacancies notified 57 candidates have already been appointed and appointment order is pending issuance for one more post. In the above circumstances the appellants are not entitled to any of the reliefs sought for and the Writ Appeal may therefore be dismissed with cost to the respondents.” 4. Learned Standing Counsel for the PSC submitted that to the vacancies reported before the expiry of the rank list, W.A.2382, 2440 & 2425/2008. 5 advices were issued. 5. Now coming to the facts of the case, we notice that W.A.2382 of 2008 is filed by an open competition candidate, who is rank No.47 in the rank list. So even if seven vacancies were reported before the expiry of the rank list, she will not get appointment. The same is the case of the appellant in W.A.2440 of 2008. She is rank No.46. Therefore W.A. Nos.2440 and 2382 of 2008 are dismissed. 6. The appellants in W.A. 2425 of 2008 may stand a chance if the seven vacancies were reported before the expiry of the rank list. But we notice that the appointing authority can report the vacancies to the PSC if only they are substantive vacancies in the permanent cadre. In this case, at the relevant time though in certain colleges Guest Lecturers were working, no posts were sanctioned by the Government. As part of economy measure Government took a conscious decision not to sanction any new posts of Lecturers. That decision was reviewed and sanction of W.A.2382, 2440 & 2425/2008. 6 four posts in various Arts and Science Colleges was granted only by the Government Order dated 25.9.2009 mentioned above. So the substantive vacancies, which may come into existence on 25.9.2009 cannot be filled from a rank list which expired on 15.12.2008. Any such claim has only to be rejected in view of the Full Bench decision of this court in Vimala Kumari v. State (1994(2) KLT 47). Therefore, the claim of the appellants that these vacancies should be treated as having been created while the rank list was alive and therefore they should be advised for appointment cannot be accepted. In the result, W.A. 2425 is also dismissed. K. Balakrishnan Nair, Judge P. Bhavadasan, Judge sb.