IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 WP(C).No. 7585 of 2009(P) -------------------------------------- PETITIONER(S): ----------------------- TWINKLE VALIYAKATTIL, D/O POKKAN.V.K, AGED 27 YEARS, VALIYAKATTIL, EDACHERY.PO, BADAGARA (VIA),KOZHIKODE. BY ADVS.MR.M.R.HARIRAJ MR.SURAJ.S MR.P.A.KUMARAN SMT.VINEETHA B. RESPONDENT(S): ------------------------ 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY,KPSC,TRIVANDRUM. 2. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA,DEPARTMENT OF EDUCATION,SECRETARIAT,TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, WAYANAD. R1 BY ADV. MR.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2009, ALONG WITH WPC NO. 11316 OF 2009 AND CONNECTED CASES THE COURT ON 01/12/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.7585/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RANKED LIST OF HAS (ENGLISH) FOR WAYANAD DISTRICT PUBLISHED ON 25.8.05 BY THE IST RESPONDENT. P2:- COPY OF THE JUDGMENT DTD. 13.7.06 IN WPC. 23382/05. P3:- COPY OF THE ORDER NO.WR(2) 3398/02 DTD. 24.5.08 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE IST RESPONDENT. P4:- COPY OF THE ADDENDUM NOTIFICATION NO. SS III/HSA (ENGALISH)/ EDN/WAYANAD/05 DTD. 13.1.09 ISSUED BY THE IST RESPONDENT. TRUE COPY P.A.TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.7585/2009-P, 11316/2009-H, 11558/2009-L, 15555/2009-L, 16313/2009-H, 18481/2009-E & 20816/2009-V ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 1st day of December, 2009 J U D G M E N T “C.R.” All these writ petitions concern a common question, and hence they are disposed of by a common Judgment. The issue is regarding the life of the expanded ranked list published by the Commission in respect of the post of 'High School Assistant (English)' in various Districts. 2. In W.P.(C).No.11558/2009 for filling up the post of H.S.A (English) in Thrissur District, the P.S.C had published a ranked list on 09/11/2005, in which the petitioner was included as rank No.4 in the supplementary list for Ezhava community. Some candidates who could not find a place therein challenged the said ranked list in the light of the decision of the Apex Court in State of Punjab and others v. Manjith Singh and others [AIR 2003 SC 4580]. The fixing of cut off marks was the subject matter of challenge. In Ext.P2 ranked list published on 09/11/2005, only 66 candidates were included in the main list whereas the vacancies reported to the Commission was 100. While advising the last candidate in the main list, the list got exhausted and therefore, the supplementary W.P.(C). Nos..7585/2009 and connected cases -:2:- list could not be operated upon. Some of the vacancies were pending before the Commission at that point of time. 3. All those writ petitions were disposed of by a Division Bench of this Court and the Judgment is reported as Ajayan v. State of Kerala [2006 (3) KLT 854]. This Court issued a direction to the P.S.C to assess the vacancies and publish additional list within two months from the date of the Judgment. The present ranked list is the one that is published in terms of the directions issued in the said Judgment. 4. The main contention raised by the writ petitioner herein is that going by Rule 13 of the Kerala Public Service Commission Rules of Procedure, a ranked list published by the Commission shall remain in force for a period of 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 the new list after the expiry of the minimum period of one year or till the expiry of three years, whichever is earlier. Accordingly, it is submitted that the vacancies which will arise during the W.P.(C). Nos..7585/2009 and connected cases -:3:- currency of the ranked list for the said period will have to be filled up from the said ranked list. This was not followed by the P.S.C. Thus, the petitioner's contention is that future vacancies should also be reckoned for operating the said ranked list for enabling the P.S.C to advise candidates in all the vacancies reported including N.J.D vacancies and advice shall not be restricted to vacancies pending at the time of cessation of the ranked list. 5. W.P.(C).No.15555/2009 & W.P.(C).No.11316/2009 relates to the post of H.S.A (English) in Malappuram District. The petitioners are included in the expanded ranked list which is produced as Ext.P1. Therein also similar prayers have been made. W.P.(C).No.18481/2009 & W.P.(C).No.20816/2009 relates to the post of H.S.A (English) in Palakkad District. Similar contentions have been raised in the said writ petition. W.P.(C). No.16313/2009 is in respect of post of H.S.A (English) in Thrissur District and W.P.(C).No.7585/2009 relates to the post of H.S.A (English) in Wayanad District. W.P.(C). Nos..7585/2009 and connected cases -:4:- 6. The Public Service Commission (for short P.S.C) has filed separate counter affidavits in all these writ petitions disputing the claim of the petitioners. 7. Heard the learned counsel for the petitioners Adv.Shri P.C.Sasidharan, Dr.George Abraham and Adv.Shri M.R.Hariraj, and the learned Standing Counsel appearing for the Public Service Commission, Shri Alexander Thomas and the learned Government Pleader, Smt.M.R.Sreelatha, appearing for other respondents. 8. The main argument raised by Adv.Shri P.C.Sasidharan is by relying upon Rule 13 of the KPSC Rules of Procedure. It is pointed out that, the Judgment of the Division Bench is dated 13/07/2006. Going by the operative portion of the Judgment, the Commission had to publish additional lists in various districts within two months from the date of the Judgment. This direction has been violated by the Commission. They have published the list, as per Ext.P1, only on 13/01/2009. Thus, there is purposeful delay in publishing the additional list. Even though it is termed as 'Addendum Notification', it is only W.P.(C). Nos..7585/2009 and connected cases -:5:- a fresh notification as the earlier notification bringing into force the ranked list had expired. Therefore, for all intend and purposes in terms of Rule 13 of the KPSC Rules of Procedure, the life period of the ranked list will have to be determined from the date shown in the ranked list namely the notification. If that be so, Ext.P1 should have its own life and it should not depend upon the life period of the earlier ranked list. Therefore, the list should be operated for advising candidates in future vacancies also. The contention of the P.S.C that the list will be valid only for advising candidates in respect of vacancies reported upto the maximum three year validity period of the ranked list finalised on 09/11/2005, i.e. the validity period of the original ranked list, is disputed by the learned counsel for the petitioners. It is submitted that the same will violate the directions issued by this Court in Ajayan's case [2006 (3) KLT 854](Supra). 9. The contention of the learned counsel Shri P.C.Sasidharan is supported by Dr.George Abraham and Adv.Shri M.R.Hariraj. W.P.(C). Nos..7585/2009 and connected cases -:6:- 10. The stand of the P.S.C was explained by Shri Alexander Thomas. The Division Bench in Ajayan's case [2006 (3) KLT 854](Supra) had categorically held that the consideration is only in respect of vacancies that may arise during the currency of the list, i.e. during the currency of the ranked lists which were sought to be expanded. It is also contended that the Division Bench has specifically directed that such additionally included candidates can be considered for advise only against vacancies reported during the currency of the list. The addendum notification only additionally includes candidates in the ranked list and the validity period of the ranked list is fully governed by Rule 13 of the K.P.S.C Rules of Procedure and the ranked list finalised on 09/11/2005 can have maximum validity period only upto 09/11/2008. These contentions have been raised with regard to the list in respect of different Districts. Reliance is placed on various decisions of this Court to the effect that the Commission can advise candidates only during the life W.P.(C). Nos..7585/2009 and connected cases -:7:- period of the ranked list and the future vacancies cannot be considered. 11. The learned Standing Counsel for the Commission further relied upon the principles laid down by the Apex Court in K.Thulaseedharan v. Kerala State Public Service Commission, Thiruvananthapuram and others [(2007) 6 SCC 190] in support of his pleas. Therein, the interpretation of the fifth proviso to Rule 13 of the KPSC Rules of Procedure arose for consideration. It was held that the P.S.C has only power to keep alive a ranked list which is still current on the day the decision is taken and not revive and keep alive a ranked list which had already expired. The legal position in that regard has been explained in paragraphs (10) & (11) of the Judgment thus:- “10. The fifth proviso to Rule 13 of the Rules relied upon clearly gives an indication that the power available thereunder could be exercised only in the case of a ranked list which is still subsisting or the life of which is still continuing. The words “the Commission shall have the power to keep alive the ranked W.P.(C). Nos..7585/2009 and connected cases -:8:- lists which are normally due to expire during the said period” (emphasis supplied) clearly show that it is a question of keeping alive until a future date, of a live list, the term of which is to expire shortly. The power under the fifth proviso to Rule 13 of the Rules cannot be made use of to revalidate a time expired ranked list. The two instances pointed out by the learned Senior Counsel for the appellants where the Public Service Commission had done it, could not be justified legally in the light of the fifth proviso to Rule 13 of the Rules. They must be treated as aberrations. They cannot form the foundation of any right........ 11. .........The Public Service Commission is a constitutional body and it is expected to act even-handedly and strictly in accordance with law. When the fifth proviso to Rule 13 of the Rules gives it only a power to extend the validity of lists for the periods referred to therein in the circumstances indicated therein, it has only the power to keep alive a ranked list which is still current on the day the decision is taken and not revive and keep alive a ranked list which had already W.P.(C). Nos..7585/2009 and connected cases -:9:- expired. The counter-affidavit of the Public Service Commission itself indicates that the High Court has taken such a view in about 50 cases. It is not expected of a constitutional body like the Public Service Commission to issue orders or notifications for which it has no authority. On a true construction of the provision concerned this is the position. It is interesting to note that the stand adopted by the Public Service Commission in the present case before the High Court and before us is also that under the fifth proviso to Rule 13 of the Rules it has no power to revive a dead list and all that it can do is to keep alive for a further period a list which is still alive on the day the decision is taken. We trust that the Public Service Commission would ensure that such illegalities like the issuing of orders relied upon by the learned counsel for the appellant, are not committed creating hardship and agony to some, out of many included in lists prepared by the Public Service Commission.” 12. Both sides are relying upon the decision of the Division Bench in Ajayan's case [2006 (3) KLT 854](Supra). W.P.(C). Nos..7585/2009 and connected cases -:10:- Therefore, it is profitable to consider the effect of the directions contained therein. The operative portion of the Judgment is as follows:- “..........Therefore, it is very clear that three to five times of the number of vacancies which may occur during the currency of the list as mentioned in Manjit Singh's case were not considered while shortlisting the candidates. Therefore, we direct the P.S.C to consider anticipated vacancies also and then refix the number of persons to be called for interview on the basis of the directions in Manjit Singh's case. Admittedly, in all the districts even three times of the vacancies that may arise during the currency of the list were not considered while shortlisting the candidates. P.S.C is directed to assess the vacancies that may arise during the currency of the list in a reasonable manner within one month from today and shortlist the candidates at least three times the number of vacancies in the order of merit without fixing cut off marks and complete the formalities and publish additional list within two months from today and advise W.P.(C). Nos..7585/2009 and connected cases -:11:- candidates for the vacancies reported during the currency of the list. However, we make it clear that petitioners, even if were shortlisted, will not be entitled to get any seniority over the persons who were already listed.” 13. The direction issued by the Division Bench will show that three to five times of the number of vacancies which may occur during the currency of the ranked list ought to have been considered. In that view of the matter, the anticipated vacancies which may arise during the currency of the ranked list will have to be considered while re-fixing the number of persons to be called for interview. But finally, it was specified that the P.S.C shall “publish additional list within two months from today and advise candidates for the vacancies reported during the currency of the list”. Herein, the question arises whether the period of validity of the list mentioned by the Division Bench is the list that was in force at that point of time or the expanded list published in the terms of the directions. Shri M.R.Hariraj, learned counsel for the petitioners in W.P.(C).No.7585/2009 strongly contended that W.P.(C). Nos..7585/2009 and connected cases -:12:- it can only be the expanded list, otherwise the directions issued by the Division Bench cannot have any effective operation. 14. The Standing Counsel for the P.S.C explained that the Bench never considered the filling up of future vacancies after the period of expiry of the then existing ranked list. The Bench was only concerned with the size of the ranked list and not the life period of the ranked list. Therefore, by directing the P.S.C to refix the number of candidates to be called for interview and publish the list by including more candidates, the effective direction was only to extend the size of the ranked list and in the absence of any direction to extend the life period of the ranked list, it is pointed out that the petitioners cannot successfully seek for a direction to advise candidates reckoning future vacancies also. 15. This is answered by the learned counsel for the petitioners by pointing out that the Judgment was rendered during the currency of the ranked list which was in force at that point of time. But expanded ranked list was W.P.(C). Nos..7585/2009 and connected cases -:13:- published after the expiry of the earlier ranked list. Therefore, the Commission cannot be allowed to take advantage of its own fault in not publishing the ranked list within the time prescribed in the Judgment. It is therefore, submitted that if the argument of the Commission is accepted, the intended purpose of the directions issued by this Court will be defeated. 16. The Division Bench of this Court in the above Judgment, namely, Ajayan's case [2006 (3) KLT 854](Supra) has clarified obviously that the advise of the candidates should be in respect of the vacancies reported during the currency of “the list”. What is involved is the expansion of the ranked list. That means, as pointed out by the learned Standing Counsel for the P.S.C., the Division Bench was only concerned with the size of the ranked list. This is evident from a reading of the operative portion of the Judgment itself. I may reiterate them at the risk of repetition. The Bench was of the view that three to five times of the number of vacancies which may occur during the currency of the list were not considered while shortlisting W.P.(C). Nos..7585/2009 and connected cases -:14:- the candidates. In that point of view the P.S.C was directed to consider the anticipated vacancies also and then “refix the number of persons to be called for interview on the basis of the directions in Manjit Singh's case”. This is all the more evident from the finding to the following effect that “admittedly, in all the districts even three times of the vacancies that may arise during the currency of the list were not considered while shortlisting the candidates”. Therefore, the direction was limited to the vacancies that could be anticipated during the currency of the ranked list and not in respect of vacancies which may arise after the expiry of the life period of the ranked list. 17. What is published herein is only an Addendum Notification for expanding the ranked list itself. It has no separate existence. The notification published for initiating the selection process is a common one in respect of these two ranked lists. If the contentions of the petitioners are agreed to, then all the vacancies which have been reported to the Commission at a later point of W.P.(C). Nos..7585/2009 and connected cases -:15:- time should be filled up from the expanded ranked list itself. It is settled law by various decisions of this Court that the candidates can be advised only in respect of the vacancies reported during the life period of the ranked list itself. The said principle cannot be over looked or watered down in a circumstance like this. 18. Thus, the question is whether merely because the Commission had published the present ranked list only after the expiry of the period of validity of the earlier ranked list, the petitioners could successfully contend that the life period of the ranked list will have to be fixed in terms of Rule 13 of the KPSC Rules of Procedure. The question is whether the delay in publishing the ranked list will in any way benefit the petitioners. 19. The learned Standing Counsel for the Commission explained that the delay as such has occurred only because the Commission had taken up the matter before the Apex Court and was awaiting the disposal of the S.L.Ps. I am of the view that when the directions of the Division Bench are understood in the right manner, there cannot be any W.P.(C). Nos..7585/2009 and connected cases -:16:- difficulty at all. What is directed was publishing of Addendum Notification for expanding the earlier ranked list. If the direction issued by the Division Bench was only that the size of the rank list should be expanded to cover the vacancies, namely, anticipated vacancies which would arise during the currency of the ranked list, then the delay in publishing the expanded ranked list will not affect the rights of the candidates included therein for being advised in respect of vacancies which were reported during the currency of the said ranked list. Actually, the delay has not defeated the rights of those candidates. It is all the more a settled position that future vacancies, i.e. vacancies which may arise after the life period of the ranked list, cannot be filled up by candidates from the expired ranked list. The reporting of the vacancies is a continuing process, that too by the appointing authority. The Commission is only obliged to advise the candidates to the vacancies which are reported during the currency of the ranked list alone. W.P.(C). Nos..7585/2009 and connected cases -:17:- 20. As rightly pointed out by the P.S.C, the Bench in Ajayan's case [2006 (3) KLT 854](Supra) was only concerned with the size of the ranked list and not the life period of the ranked list itself. Therefore, the contentions raised by the learned counsel for the petitioners have to be rejected. 21. The learned counsel for the petitioners Dr.George Abraham appearing for the petitioners in W.P.(C). No.15555/2009 submitted that there were seven NJD vacancies and 41 other vacancies remaining to be filled up. 22. The learned Standing Counsel for the Commission explained that these vacancies were not reported during the life period of the ranked list and therefore, the Commission cannot be faulted for not advising any candidates. 23. One of the contentions raised by the learned counsel for the petitioners, Shri P.C.Sasidharan is that no particular resolution or decision of the Commission is mentioned in the counter affidavit in support of the plea. It is therefore submitted that the act of publishing a W.P.(C). Nos..7585/2009 and connected cases -:18:- ranked list should be taken as a fresh ranked list and in the absence of a decision as such by the Commission, the pleas raised in the counter affidavit cannot be accepted. 24. The learned Standing Counsel for the Commission pointed out that the Commission has only followed the directions issued by the Division Bench in publishing the ranked list and it need not be supported by any particular decision of the Commission. I find force in the above submission. The P.S.C was only implementing the directions issued by this Court. 25. Shri P.C.Sasidharan has raised a contention by relying upon the definition of 'Selection Year' in the Explanation to Rule 15(a) Part II of K.S. & S.S.R. in support of the arguments. But, in the light of the view taken by me, the said contention also cannot be accepted. 26. Shri M.R.Hariraj, the counsel appearing for the petitioner in W.P.(C).7585/2009 has raised a contention, pertaining to the petitioner therein, that in the present ranked list, he has been pushed down which cannot be justified. In the supplementary list published on W.P.(C). Nos..7585/2009 and connected cases -:19:- 25/08/2005, he was rank No.8 in the list of Ezhavas. In the Addendum Notification, he is rank No.95 in the main list. Many of the persons who were not in the original ranked list is shown now above her in the ranked list. It is pointed out that this method is also faulty. 27. The learned Standing Counsel for the Commission submitted that it is not a case where the petitioner has been illegally pushed down. In terms of the directions issued by this Court an expanded ranked list has been published after following the various procedures. It is explained that on enlargement of the ranked list, a few open competition candidates who were eliminated for want of requisite marks to be included in the main list of the ranked list found place in the main list of the Addendum Notification. These candidates have to be ranked above those who were in the supplementary list of the ranked list according to the total marks obtained by them. W.P.(C). Nos..7585/2009 and connected cases -:20:- 28. The said explanation is acceptable in the light of the directions issued by this Court in the Judgment. Therefore, nothing turns upon the said question raised by the learned counsel for the petitioner. 29. The learned counsel for Commission relied upon a recent decision of the S.S.Balu and another v. State of Kerala and others [(2009) 2 SCC 479] in support of the plea that a candidate included in the ranked list has no indefeasible right for appointment. It was held by the Apex Court that a person does not acquire a legal right to be appointed only because his name appears in the select list. The State as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to filling up of vacancies or arbitrariness is committed, the candidate concerned will have no legal right for obtaining a writ of mandamus. The said dictum also goes against the contentions raised by the learned counsel for the petitioners. The view taken in Beena Kumari v. Joint Registrar of Co-operative Societies [2008 (4) KLT 110], and in Sobhana K. v. State of Kerala W.P.(C). Nos..7585/2009 and connected cases -:21:- and others [2008 (3) KHC 909], that expiry of the ranked