IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 WP(C).No. 7717 of 2006(R) -------------------------------------- PETITIONER(S): ------------------------- 1. SANTHOSH KUMAR.K.N., S/O.NARAYANA PILLAI, KOCHUKKATTU HOUSE, KARIKKAD P.O., THANNEERMUKKAM, CHERTHALA. 2. P.HARISH KUMAR, VADAKKEVEEDU, PARASIVAKKAL P.O., PARASALA, THIRUVANANTHAPURAM DISTRICT. 3. BAHULAYAN.P., PANTHAVILAVEEDU, PALAMKONAM, VENJAREMOODU, THIRUVANANTHAPURAM. 4. SUDHEERKUTTY.M., THANDAVILA KIZHAKKATHIL, PADUKKAVILA, THATTARKONAM P.O., KOLLAM DISTRICT. 5. RAVI.R,THEKKUMKATTIL VEEDU, ENATHU P.O., PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO THE DEPARTMENT OF AGRICULTURE, THIRUVANANTHAPURAM. 2. DIRECTOR, DEPARTMENT OF AGRICULTURE,THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF AGRICULTURE, THIRUVANANTHAPURAM. 4. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM R1 TO R3 BY GOVERNMENT PLEADER SRI.NOBLE MATHEW R4 BY ADV.SRI.P.C.SASIDHARAN,SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.7717/2006 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE RANKED LIST PUBLISHED BY THE PSC 5/11/2004. P2(A) COPY OF THE ADVICE MEMOS DATED 17/2/2005 ISSUED TO THE 1ST PETITIONER BY THE PSC NO.DTD (1) 3237/95. P2(B) COPY OF THE ADVICE MEMOS DATED 17/2/2005 ISSUED TO THE 2ND PETITIONER BY THE PSC NO.DTD (1) 3237/95. P2(C) COPY OF THE ADVICE MEMOS DATED 17/2/2005 ISSUED TO THE 3RD PETITIONER BY THE PSC NO.DTD (1) 3237/95. P2(D) COPY OF THE ADVICE MEMOS DATED 17/2/2005 ISSUED TO THE 4TH PETITIONER BY THE PSC NO.DTD (10 3237/95. P2(E) COPY OF THE ADVICE MEMOS DATED 17/2/2005 ISSUED TO THE 5TH PETITIONER BY THE PSC NO.DTD (1) 3237/95. P3 COPY OF THE REPRESENTATION SUBMITTED TO THE CHIEF MINISTER BY THE PETITIONERS. P4 COPY OF THE REPLY DATED 13/7/2005 ISSUED BY THE SECRETARY TO DEPARTMENT OF AGRICULTURE. P5 COPY OF THE ORDER DATED 7/2/2004 PASSED BY THE DIRECTOR OF AGRICULTURE. P6 COPY OF THE GO DATED 12/8/1971. P7 COPY OF THE CIRCULAR NO.123786/SD-5/72/PD DATED 5/12/1972 ISSUED BY THE GOVT. P8 COPY OF THE CIRCULAR NO.1634/ADV.C3/P&ARD DATED 18/2/1999 ISSUED BY THE GOVT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No. 7717 OF 2006 ---------------------------------------------- Dated this the 18th day of October, 2011 JUDGMENT Out of the five petitioners, the 3rd petitioner is stated to be no more. Petitioners 1, 2 and 5 has already got appointment pursuant to the advice, which is the subject matter of this writ petition. As such, their grievances also do not survive. Only the grievance of the 4th petitioner survives. The 4th petitioner along with other petitioners was included in a ranked list prepared by the Public Service Commission for appointment to the post of Mechanic in the Agricultural Department. Subsequently, the Public Service Commission advised all the petitioners for appointment to the post. The grievance of the petitioners is that pursuant to the advice memo, they were not appointed. But, subsequently, petitioners 1, 2 and 5 were given appointment leaving the 4th petitioner alone. The learned counsel for the petitioners submits that as long as the advice stands the petitioners are entitled to appointment unless the Public Service W.P.(C)No.7717/06 2 Commission cancels the advice. 2. Respondents 1, 2 and 3 have filed a common counter affidavit taking the stand that there are no vacancies to accommodate the 4th petitioner, insofar as several posts of Mechanic have been abolished. They further submit that although the Government requested the Public Service Commission to cancel the advice, the Public Service Commission refused to cancel the advice on the ground that vacancies once reported shall neither be reduced nor cancelled. Respondents 1, 2 and 3 would take the stand that insofar as there are no vacancies, the 4th petitioner cannot be appointed pursuant to the advice. 3. I have considered the rival contentions in detail. It is settled law that once a vacancy is reported and the Public Service Commission has advised a candidate, that candidate has a right to be appointed, unless the Public Service Commission cancels the advice. In this case, admittedly on the alleged ground that certain posts have been abolished, the Government requested the Public Service Commission to cancel the advice and they refused to do so. Therefore, unless the Government challenges the refusal of the Public Service W.P.(C)No.7717/06 3 Commission to cancel the advice and gets the advice cancelled, I do not think that respondents 1 to 3 can take the stand that they will not appoint the 4th petitioner, despite the advice memo by the Public Service Commission. If at all there are no posts or vacancies, it is for respondents 1 to 3 to take appropriate action in that regard as available to them under law. If there are no vacancies, the 4th petitioner shall be appointed creating a supernumerary vacancy, till a regular vacancy arises. In the above circumstances, I dispose of this writ petition with a direction to respondents 1 to 3 to appoint the 4th petitioner also pursuant to Ext.P2(d) advice memo issued by the Public Service Commission, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE acd W.P.(C)No.7717/06 4 W.P.(C)No.7717/06 5