IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 WP(C).No. 32593 of 2008(E) -------------------------- PETITIONER(S): -------------- PREETHA.K, W/O.AJIKUMAR.V.V, KIZHAKEKKARA PUTHEN VEEDU, PARAIKONAM, NEYYARDAM POST, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARYL TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE INSPECTOR GENERAL OF POLICE, A.P.BATTALION, ARMED POLICE,HEAD QUARTERS, THIRUVANANTHAPURAM. 3. THE DEPUTY INSPECTOR GENERAL OF POLICE, A.P.BATTALION, THIRUVNANATHAPURAM. 4. THE COMMANDANT, SPECIAL ARMED POLICE (SAP), THIRUVANANTHAPURAM. 5. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 6. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R 5 &6 GOVERNMENT PLEADER, ADV.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON 07/04/2009 DELIVERED THE FOLLOWING: WP(C).No. 32593 of 2008(E) APPENDIX EXT.P1 TRUE COPY OF THE RANKED LIST FOR THE POST OF WOMAN POLICE CONSTABLE (AP BATTALION) POLICE, THIRUVANANTHAPURAM. EXT.P2 TRUE COPY OF THE LETTER DATED 03/09/2008 ISSUED BY THE 3RD RESPONDENT. EXT.P3 TRUE COPY OF THE JUDGMENT DATED 15/10/2008 IN W.A.NO.403/2008 \\TRUE COPY// P.A.TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 32593 of 2008-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April, 2009. JUDGMENT The petitioner seeks for a direction to respondents 5 and 6 to issue advice memo to the petitioner as Woman Police Constable (A.P. Battalion) against a Non Joining duty vacancy. 2. The Public Service Commission invited application for appointment as Woman Police Constable . Ext.P1 is the ranked list published after conducting the test. The ranked list came into force on 16.6.2005. Rank No.113, one Lakshmi G.S. even though was issued advice memo, she did not join duty and thus a vacancy arose which was reported on 3.9.2008. The petitioner submits that she is a candidate to be advised against the said NJD vacancy. 3. Even though the petitioner made an enquiry in the matter, she was informed that the said vacancy was reported after the expiry of the ranked list on 15.6.2008. The petitioner contends that the said view taken by the Public Service Commission is not correct, since a batch of seven candidates were advised on 12.7.2008 and their training has not started yet and therefore, in view of the proviso to wpc 32593/2008 2 Rule 13 of the Public Service Commission Rules of Procedure, the ranked list has not expired. Reliance is placed on a Division Bench decision of this court in W.A.No.403/2008. 4. In the counter affidavit, the Public Service Commission has pointed out that in the notification itself there was a Note in para 4 prescribing a three year period during which the ranked list is to be in force. It was later modified by an addendum notification dated 18.5.2004 wherein it was specified that the ranked list thus published shall cease to be in force after one year from the date of finalization of the ranked list or after one month from the commencement of training in respect of the last batch advised from the ranked list within a period of one year from the date of finalization of the ranked list, whichever is later. Again, this was cancelled and another erratum notification was issued on 10.11.2006 whereby the earlier position was restored since the post notified was for appointment as Woman Police constable and not for Trainees. 5. It is further averred that the ranked list was cancelled with effect from 17.6.2008 and the NJD vacancy was reported as per letter dated 3.9.2008 which was received in the District Office of the Commission on 5.9.2008, much later than the expiry of the ranked list. wpc 32593/2008 3 6. Heard Shri Kaleeswaram Raj, learned counsel for the petitioner, Shri Alexander Thomas, learned Standing Counsel for the Public Service Commission and the learned Govt. Pleader. 7. Mainly it was contended by the learned counsel for the petitioner that the post notified was not Woman Police Constable but only as Trainees and therefore the period of the ranked list has to be reckoned as provided in the first proviso to Rule 13 of the above Rules. It is further submitted that the Commission is empowered under Clause 40 of the Rules of Procedure to pass appropriate orders and power is available on the State Government also under Rule 39 of the General Rules to remedy such situations. 8. The first proviso to Rule 13 is in the following terms: “Provided that the above rule shall not apply in respect of ranked lists of candidates for admission to Training Courses that leads to automatic appointment to services or posts and that in such cases the Ranked Lists 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.” For the application of the proviso, the ranked list must be for admission wpc 32593/2008 4 to a training course which leads to automatic appointment. Learned counsel for the petitioner laid emphasis on the main contention that after making the advice they are sent for training and therefore actually they are appointed as Woman Police Constable Trainees and the prescriptions of the proviso will squarely apply. The said argument is hotly contested by the learned counsel for the respondents. Learned Standing Counsel for the Public Service Commission submitted that a bare perusal of Ext.P1 will show that the ranked list is for Woman Police Constable (A.P. Battalion) and it is not for appointment as Trainees. 9. The proviso can apply only in such circumstances where the ranked list is for admission to a Training course which leads to the appointment. Herein, the petitioners have not produced any material to show that the advice was made for admission to the Training course. Even though Ext.P3 judgment is relied upon, a reading of the judgment shows that the ranked list was published by the Commission for the post of Sub Inspector of Police, General Executive Branch (Trainee). Such is not the circumstance here. It is clear from the pleadings that the ranked list was published on 15.6.2005. Going by the notification itself, the minimum period was one year and the maximum three years. Since wpc 32593/2008 5 there is no challenge against the same, this court need not go into the question whether the ranked list should be in force by the operation of the proviso. The express terms of the notification as understood and applied by the Public Service Commission, in the vacancies which were reported prior to the last date, viz. 17.6.2008 confirms the position that it was effective from 16.6.2005 to 17.6.2008. If that be so, as the NJD vacancy was reported only on 3.9.2008, after the cancellation of the list, the petitioner is not entitled to be advised in the said vacancy. The legal position in that regard is clear from various decisions of this court, viz. Babu v. Public Service Commission (1996 (1) KLT 349), K.P.S.C. v. Shanil Kumar (2002 (1) KLT 604) and Lalsudheer v. K.S.R.T.C. (2003 (1) KLT 329). This court was of the view that the Public Service Commission is not bound to advise candidates against NJD vacancies reported after the expiry of the ranked list. Going by the decision of the Apex Court in Thulaseedharan v. K.P.S.C. (2007 (3) KLT 19 (SC)), the Public Service Commission has no power to keep alive an expired rank list. In fact, learned Standing Counsel for the Commission relied upon another decision of this court also in A. Sreekantan Nair and others v. M.K. Muraleedharan Nair and others (1991 LAB I.C. 2163) to contend for the position that a ranked wpc 32593/2008 6 list cannot be kept alive for unreasonably long time, as the same will be violative of Articles 14 and 16 of the Constitution of India. 10. Therefore, it can be safely be concluded that the NJD vacancy reported herein was beyond the expiry of the period of the ranked list and thus no advice could be made. The further question is whether the power under clause 40 of the Rules of Procedure could be resorted to. The same is extracted below: “40. Savings-- Nothing contained in Parts I and II of these rules shall be deemed to limit or affect the power of the Commission to make such orders as may be necessary to give effect to any of the provisions of the Constitution of India or for the proper discharge of the functions of the Commission: Provided that no such order which has an over-riding effect on the provisions contained in Part I of these rules shall be made by the Commission without the prior concurrence of the Government.” The main part of the provision confers power on the Commission to make such orders as may be necessary to give effect to any other provision of the Constitution of India or for the proper discharge of the functions of the Commission. Herein, the petitioner seeks for a direction to advise her to the vacancy which was reported after the expiry of the ranked list. When the express provisions of the Rules as well as the well wpc 32593/2008 7 settled legal position declared by this court in the various decisions will not allow the Public Service Commission to advise a candidate in a vacancy which was reported after the expiry of the ranked list, resort cannot be made to clause 40 of the Rules of Procedure in favour of a particular candidate. In fact, a similar question was considered by a learned Single Judge of this court in Writ Petition No.32617/2007 wherein the view taken is that Rule 40 of the Rules cannot be resorted to consider whether the period of the ranked list could be extended beyond the period of one year. It was held that “ this may not be a proper case for issuing a writ of mandamus to the Public Service Commission to consider whether they should exercise a power under Rule 40 of the Rules of Procedure to consider whether the period has to be extended beyond the period of one year. 11. In the light of the above, I am not persuaded to accept the contention raised on by the learned counsel for the petitioner vehemently that the said procedure could be adopted here. 12. Then, the last argument is by relying upon Rule 39 of the K.S. & S.S.R. which confers power to the Government to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in wpc 32593/2008 8 such manner as may appear to the Government to be just and equitable. It is pointed out that the very fact that the vacancy was reported to the Public Service Commission as against a NJD vacancy implies that the appointing authority very much wanted filling up of the post and if that be so, the said idea should be to put to the real effect by resorting to Rule 39 of the General Rules of KS & SSR. True, in a fit case the Government could invoke the power under Rule 39 of the above rules. Herein, obviously the petitioner has not moved the Government to invoke Rule 39. It was only raised at the time of argument. Whatever that be, the same is a special power conferred on the Government itself and this court at this stage cannot compel the Government to resort to the power under Rule 39 in the light of the facts emerging in the present case. The petitioner, if so advised, can move the Government in that matter. In view of the findings rendered above, the writ petition fails and is thus dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/