IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 WP(C).No. 36345 of 2008(B) ----------------------------------------- PETITIONER(S): ------------------------ SHANAVAS.A.K. AYKYA BHAVANAM NILAMEL PO., KOLLAM. BY ADVS. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD, SRI.P.MOHANDAS (ERNAKULAM). RESPONDENT(S): ---------------------------- 1. THE COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXCISE COMMISSIONER, KOLLAM. 3. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION,KOLLAM. R1 & R2 BY SR.GOVERNMENT PLEADER SRI. P. NANDAKUMAR R3 BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36345/2008 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RANKED LIST PUBLISHED BY PSC ON 15/01/2002. P2: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN O.P.NO.14220/2002 DTD. 10/02/2003. P3: COPY OF THE ORDER DTD. 3/12/2004 IN WPC.NO.35085/2004. P4: COPY OF THE DETAILS FURNISHED BY THE 2ND RESPONDENT IN WPC.NO.35085/2004. P5: COPY OF THE JUDGMENT DTD. 10/01/2008 IN WPC.NOP.35085/2004. P6: COPY OF THE ORDER NO.XE8-32986/06 DTD. 31/07/2008 PASSED BY THE FIRST RESPONDENT. P7: COPY OF THE ORDER DTD. 17/11/2008 IN CONT.CASE (C) NO.1163/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.36345 of 2008 (B) --------------------------------- Dated, this the 24th day of June, 2010 J U D G M E N T Challenge in the writ petition is against Ext.P6 order dated 31/07/2008 passed by the 1st respondent. 2. Briefly stated the facts of the case are that the rank list for the post of Excise Guard in Kollam Excise Division was published by the Public Service Commission on 15/01/2002. The list expired on 14/01/2005. According to the petitioner, in Ext.P5 judgment, this Court found that there were 8 vacancies available during the currency of the list to be filled up from the ranked list, and that after entering that finding, the Excise Commissioner was directed to consider the question about the availability of vacancies and if available, the PSC was directed to advice candidates from the ranked list. It is stated that as against the said direction, while deciding the issue, in Ext.P6 order the Excise Commissioner erroneously held that out of the 8 vacancies, 7 vacancies have already been filled up and the remaining one vacancy has to be filled up from the ranked WP(C) No.36345/2008 -2- list in question. In this writ petition, what the petitioner contends is that 7 vacancies are available for advising candidates from the ranked list in question. It is the correctness of the said stand taken by the Excise Commissioner in Ext.P6 which calls for consideration in this writ petition. 3. Counter affidavit has been filed by the 1st respondent. In the counter affidavit, details of the 7 vacancies have been explained. It is stated that in WP(C) No.35085/2004, this Court initially directed that 34 vacancies be reported to the PSC. Subsequently, by order dated 09/06/2005, the PSC was directed to advise 4 candidates from the ranked list, and the Assistant Excise Commissioner, Kollam was also directed to appoint the 4 candidates in Kollam Division. Subsequently, by order dated 19/08/2005, the PSC was directed to advice one more candidate for appointment on the ground that one direct recruitment vacancy was wrongly filled up by a candidate under the Dying in Harness Scheme category. This was followed by another order dated 07/12/2006 directing appointment of two more candidates from the ranked list. It is stated that while these orders were issued this Court had also directed that the WP(C) No.36345/2008 -3- appointments shall be made without disturbing the persons already appointed. It is stated that since at the time when these orders were passed, vacancies were not actually available to appoint these candidates, they were adjusted against future vacancies. It is therefore stated that the 7 vacancies found by the learned Judge in Ext.P5 judgment have been filled up with the appointment of the aforesaid 7 persons. It is stated that towards the 8th vacancy found in existence, the PSC was requested to advise candidate against the 8th vacancy. From the details thus furnished in the counter affidavit, therefore it is evident that although 7 vacancies were actually in existence, those vacancies have already been filled up in the manner explained by the 1st respondent. Facts being as above, the finding of the 1st respondent in Ext.P6 order that the 7 vacancies have already been filled up is unassailable and therefore, I do not find anything objectionable in Ext.P6 order. The writ petition fails and is accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg