ANEESH KUMAR V.S. & ORS. versus STATE OF KERALA & ORS.
[2020] 5 S.C.R. 625, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Body
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[2020] 5 S.C.R. 625
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ANEESH KUMAR V.S. & ORS.
v.
STATE OF KERALA & ORS.
(Civil Appeal No. 2368 of 2020)
APRIL 24, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Kerala Public Service Commission Rules of Procedure, 1976
– rr.13 and 14 – Applications invited for appointment to the posts
of Sub Inspector of Police (Trainee) – Selection process completed,
the Kerala Public Service Commission (KPSC) on 11.09.2013
published the first Ranked List (RL-I) – On 04.11.2013, KPSC issued
first advice on the basis of RL-I – KPSC’s decision to have a unified/
consolidated ranked list was challenged by way of OA for not
having two lists; a main and a supplementary list (which would
include candidates from reserved category) – Tribunal granted
interim relief on 05.12.2013 – KPSC issued second advice in respect
of empanelled candidates in RL-I who had secured more than 49
marks on the basis of RL-I on 20.01.2014 – Tribunal allowed OA –
High Court dismissed the petitions – Supreme Court upheld the
consolidated RL-I – During the pendency of aforesaid SLPs, KPSC
released second Ranked List (RL-II) on 26.05.2015 and thereby
RL-I was treated as ceased to exist on 25.05.2015 – On 11.11.2015,
KPSC made final advice, third advice from RL-I – RL-III notified –
Aggrieved by publication of RL-II, appellants had filed OAs inter
alia seeking direction for issuance of advice on the basis of RL-I
(till that list ceases to exist) – Dismissed – Writ petitions filed by
appellants for
direction inter alia to advice (or appoint) 93 Non
Joining Duty (NJD) vacancies on the basis of RL-I – DB referred
the matter to Full Bench which inter alia held that RL-I expired on
01.06.2016 – Held: On a plain reading of r.13 it is clear that the
Ranked List published by KPSC would remain in force for a period
of one year from the date it was brought into force – It continues to
be in force until the publication of a new list after the expiry of the
minimum period of one year or till the expiry of three years,
whichever is earlier – First proviso is an exception to the general
rule – It predicates that the general rule shall not apply in respect
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of Ranked List of candidates for admission to training courses that
leads to automatic appointment to services or posts – In such cases,
the Ranked Lists shall cease to be in force after one year from the
date of finalization of 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 – RL-I was
published on 11.09.2013, but because of fortuitous situation, the
final (third) advice from RL-I was made by KPSC on 11.11.2015
and the last batch of 339 candidates so advised was sent for training
on 01.05.2016 – Resultantly, the consequence provided by first
proviso to r.13 got triggered, whereby RL-I ceased to operate in
law, w.e.f 01.06.2016 – Interim order passed by the Tribunal on
05.12.2013, in no way interdicted the operation of RL-I – As a matter
of fact, none of the advised candidates from RL-I had secured less
than 49 marks in preliminary examination– Appellants not entitled
to base their claim in reference to RL-I, which ceased to exist on
01.06.2016, by filing writ petition(s) on 12.10.2017 for the stated
reliefs – NJD vacancies reported after 01.6.16 must be filled up
from amongst the empanelled candidates in the fresh Ranked List,
RL-II published on 26.05.2015 or RL-III published on 14.03.2019,
as the case may be – Judgment of Full Bench upheld –
Kerala High
Court Act, 1958 – s.7 – Constitution of India – Arts.142 and 309 –
Principles of Actus curiae neminem gravabit; lex non cogit ad impossibilia
– Service Law.
Practice & Procedure – Reference by Division Bench –
Exercise of jurisdiction by Full Bench – Discussed – Kerala High
Court Act, 1958 – s.7.
Dismissing the appeals, the Court
HELD: 1.1 Kerala High Court Act, 1958 provides for the
procedure on Reference to Full Bench. On a plain reading of
Section 7, it is amply clear that the Full Bench is competent to
finally decide the case itself. It is an enabling provision. Full Bench
was fully conscious about the limited scope of enquiry in Reference
placed before it, but after due consideration of all aspects, deemed
it necessary to analyse the factual matrix of the case in its correct
perspective to justly answer the Reference. In the process, the
Full Bench had to deviate from the observation made by the
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Division Bench that the candidates empanelled in the first Ranked
List (RL-I) ought to be advised for appointment to fill up the 93
NJD vacancies reported on 12.7.2016, as, in its view, in law, the
first Ranked List (RL-I) had  expired  on  1.6.2016.  In  other
words,  the  Full  Bench  was  fully conscious  of  the  scope  of  its
jurisdiction,  as  is  evinced  from  the  opening statement, in
paragraph four of the impugned judgment. After recording the
factual matrix and rival submissions, in paragraph 47 of the
impugned judgment, the Full Bench noted that it was proceeding
to answer the legal contentions within the parameters of the
applicable law and after adverting to Rules 13 and 14 of the 1976
Rules, it analysed the factual matrix to conclude that since the
last batch was advised by the KPSC from the first Ranked List
(RL-I) on 11.11.2015 and it had joined training on 1.5.2016 in
terms of first proviso to Rule 13, the first Ranked List (RL-I)
ceased to operate from 1.6.2016 (namely, on completion of one
month from 1.5.2016). In the peculiar facts of this case, the Full
Bench had no other option but to analyse the factual matrix for
ascertaining the applicability of extant rules and to answer the
matters in issue involved in Reference appropriately. Suffice it
to observe that the impugned judgment cannot be overturned on
the basis of threshold (technical) plea under consideration. No
fruitful purpose will be served by relegating the parties before
the High Court on technicality. [Paras 22, 23][645-C; 646-G-H;
647-A-C; F-H]
T. A. Hameed v. M. Viswanathan (2008) 3 SCC 243 :
[2008] 3 SCR 210; State of Punjab v. Salil Sabhlok &
Ors. (2013) 5 SCC 1 : [2013] 5 SCR 18 – relied on.
1.2 On a plain reading of Rule 13, it is amply clear that the
Ranked List published by the Commission (KPSC) would remain
in force for a period of one year from the date on which it was
brought into force. It further envisages that the said list will
continue to be in force until the publication of a new list after the
expiry of the minimum period of one year or till the expiry of
three years, whichever is earlier. The first proviso is an exception
to the general rule. It predicates that the general rule shall not
apply in respect of Ranked List of candidates for admission to
training courses that leads to automatic appointment to services
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
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or postsand that in such cases, the Ranked Lists shall cease to
be in force after one year from the date of finalization 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. It is only this excepted eventuality which
may elongate the tenure of the Ranked List published by the
Commission (KPSC) beyond one year. The first Ranked List
(RL-I) was published on 11.9.2013, but because of fortuitous
situation, the final (third) advice from the first Ranked List
(RL-I) was made by the KPSC on 11.11.2015 and the last batch
of 339 candidates so advised was sent for training on 1.5.2016.
Resultantly, the consequence provided by the first proviso to
Rule 13 got triggered, whereby the first Ranked List (RL-I)
ceased to operate in law, with effect from 1.6.2016. The Court is
in agreement with the analysis of factual matrix of the case
undertaken by the Full Bench. The interim order passed by the
Tribunal on 5.12.2013, in no way interdicted the operation of the
first Ranked List (RL-I). As a matter of fact, none of the advised
candidates from the first Ranked List (RL-I) had secured less
than 49 marks in the preliminary examination. In any case, the
original application(s) filed by the appellants before the Tribunal
came to be disposed of on 20.2.2014,
which order eventually
became subject matter of Civil Appeal No. 8536/2015 and
connected appeal before this Court. The operation of the first
Ranked List (RL-I) was in a way interdicted for the first time on
account of interim order passed by this Court on 3.11.2014, which
stood vacated whilst allowing the Civil Appeal on 13.10.2015.
The one-year period referred to in Rule 13 of the 1976 Rules, as
per the general application, would have expired on 10.9.2014.
There was no complete interdiction of the stated list until
3.11.2014 and for that reason, the KPSC was justified in issuing
advice even after the interim order was passed by the Tribunal,
namely, on 20.1.2014 (before the status quo order was passed by
this Court for the first time on 3.11.2014). The final advice was
admittedly issued on 11.11.2015 after the disposal of civil appeals
by this Court on 13.10.2015. Pursuant to the final (third) advice,
the last batch of 339 empanelled candidates from the first Ranked
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List (RL-I) was sent for training on 1.5.2016, as a result of which
the first Ranked List (RL-I) ceased to exist on expiry of one
month therefrom i.e. on1.6.2016. This conclusion has been justly
arrived at by the Full Bench disregarding the decision of the
KPSC, dated 26.10.2015 to treat the first Ranked List (RL-I)
having ceased to exist due to publication of second Ranked List
(RL-II) on 26.5.2015. [Paras 24-26][650-C-G; 652-G-H;
653-A-E]
1.3 Admittedly, all the appellants were empanelled in the
first Ranked List (RL-I), which, as aforementioned, had ceased
to exist on 1.6.2016. Resultantly, the appellants cannot set up
any claim in respect of vacancies reported thereafter. The NJD
vacancies reported after 1.6.2016 must be filled up from amongst
the empanelled candidates in the fresh Ranked List (i.e. the
second Ranked List (RL-II) published on 26.5.2015 or the third
Ranked List (RL-III) published on 14.3.2019, as the case may
be). [Para 27][654-A-B]
1.4 Grievance about publication of the second Ranked List
(RL-II) during the pendency of appeal before this Court and
despite the order of status quo, was not pursued before this Court
on behalf of the appellants. The order of status quo though
interdicted processing of the first Ranked List (RL-I), that
restriction stood lifted with setting aside of the decisions of the
Tribunal and the High Court and allowing the appeal on
13.10.2015. Sans any direction by this Court and challenge  to
publication  of  the
second  Ranked  List  (RL-II)  on  26.5.2015,
nothing came in the way of the respondents to proceed with the
final advice made on 11.11.2015 relating to 339 empanelled
candidates from the first Ranked List (RL-I), who in turn,
commenced their training on 1.5.2016. The appellants were not
entitled to base their claim in reference to the first Ranked List
(RL-I), which had ceased to exist on 1.6.2016, by filing writ
petition(s) on 12.10.2017 for the stated reliefs. As the first Ranked
List (RL-I), in law, ceased to exist from 1.6.2016, no relief could
be granted to the appellants and the principles of actus curiae
neminem gravabit and lex non cogit ad impossibilia will be of no
avail, as it was not a case of any prejudice caused to the appellants
on account of Court order as such. [Paras 30, 31][655-A-E]
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
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S. S. Balu & Anr. v. State of Kerala & Ors. (2009) 2
SCC 479 : [2009] 1 SCR 196; Shankarsan Dash v.
Union of India (1991) 3 SCC 47 : [1991] 2 SCR 567;
Jang Singh v. Brij Lal & Ors. [1964] 2 SCR 145; Atma
Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 :
[1988] 2 Suppl. SCR 528; South Eastern coalfields Ltd.
v. State of M.P. & Ors. (2003) 8 SCC 648 : [2003] 4
Suppl. SCR 651; Union of India & Ors. v. Kali Dass
Batish & Anr. (2006) 1 SCC 779 : [2006] 1 SCR 261;
Dr. M. A. Haque & Ors. v. Union of India & Ors. (1993)
2 SCC 213 : [1993] 2 SCR 1; K. Thulaseedharan v.
Kerala State Public Service Commission Trivandrum &
Ors. (2007) 6 SCC 190 : [2007] 5 SCR 1042; Deepa
Keyes v. Kerala State Electricity Board & Anr. (2007) 6
SCC 194; Secretary, Kerala Public Service Commission
v. Sheeja P. R. & Anr. (2013) 2 SCC 56 : [2013] 1 SCR
182; Nair Service Society v. Distt. Officer, Kerala
Service Commission and Ors. (2003) 12 SCC 10 : [2003]
5 Suppl. SCR 551– referred to.
Kerala Public Service Commission v. Dr. Kesavankutty
Nair & Ors. ILR 1977 (2) Kerala 687; Kerala Public
Service Commission v. Shanil Kumar (2002) 1 KLT 604;
Lal Sudheer and Ors. v. Kerala State Road Transport
Corporation & Anr. (2003) 1 KLT 329 – referred to.
Case Law Reference
[2009] 1 SCR 196
referred to
Para 12
[1991] 2 SCR 567
referred to
Para 12
[1964] 2 SCR 145
referred to
Para 16
[1988] 2 Suppl. SCR 528
referred to
Para 16
[2003] 4 Suppl. SCR 651
referred to
Para 16
[2006] 1 SCR 261
referred to
Para 19
[1993] 2 SCR 1
referred to
Para 20
[2007] 5 SCR 1042
referred to
Para 20
(2007) 6 SCC 194
referred to
Para 20
[2008] 3 SCR 210
relied on
Para 22
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[2013] 5 SCR 18
relied on
Para 22
[2013] 1 SCR 182
referred to
Para 27
[2003] 5 Suppl. SCR 551
referred to
Para 27
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2368
of 2020.
From the Judgment and Order dated 21.02.2019 of the High Court
of Kerala at Ernakulam in OP (KAT) No. 408 of 2017.
With
C.A. Nos. 2369, 2370 and 2371 of 2020
Dushyant Dave, P.V. Surendranath, Sr. Advs., Sanand
Ramakrishnan, Rajeev Mishra, Anzu. K. Varkey, N.P. Rakeesh Panicker,
Prakash Ranjan Nayak, Resmitha R. Chandran, Ms. Lekha Sudhakran,
Vipin Nair, P.B. Suresh, Karthik Jayashankar, G. Prakash, Rajiv Shankar
Dvivedi, Sushant Kumar Sarkar, Rishabh Jain, Renjith B. Marar,
Ms. Lakshmi N. Kaimal, Mahendra Kumawat, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Leave granted.
2. This batch of appeals, by special leave, are against the final
judgment and order dated 21.2.2019 passed by the Full Bench of the
High Court of Kerala at Ernakulam (for short, “the High Court”) in O.P.
(KAT) Nos. 256/2017, 330/2017 and 408/2017 pursuant to a Reference
Order by the Division Bench, bearing the same case numbers, passed
on 16.11.2018.
3. In a nutshell, the appellants have preferred these appeals to be
advised (or appointed) against 93 Non-Joining Duty (for short, “NJD”)
vacancies reported to the Kerala Public Service Commission (for short,
“the KPSC”) on 12.7.2016 relating to the post of Sub Inspector of Police
(Trainee). Respondents declined
that demand on the ground that the
Ranked List dated 11.9.2013 [for short “first Ranked List
(RL-I)”](wherein the appellant(s)have been empanelled), had expired
before the stated vacancies came to be reported. This Court vide order
dated 24.9.2019, called upon the respondents to explore the possibility of
issuing advice for 31 left out candidates (appellants and similarly placed
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
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persons) against the 34 NJD vacancies still available. However, vide
notification dated 18.11.2019, the State of Kerala (respondent No. 1)
declined to do so due to administrative and legal reasons, cementing
their stand that the first Ranked List (RL-I) had already expired before
the vacancies were reported.
Factual Background
4. Pursuant to a gazette notification issued on 28.9.2007,
applications were invited for appointment to the abovementioned posts,
allocated into three different categories (namely, Category 315/2007 for
open quota, Category 316/2007 for ministerial quota and Category
317/2007 for constabulary quota). The KPSC having received large
number (around 42,000) of applications than anticipated, decided to
conduct a preliminary objective test.  That test was carried out to prune
the list of eligible candidates, for which 49 marks were specified as cut-
off marks.  On the basis of that test, a list was prepared. However, the
KPSC then realised that the said list did not have enough candidates
from reserved categories and thus, it decided to reduce the cut-off marks
for reserved categories upto 32 marks; and to draw up a fresh list to
include all qualified candidates. After completing the selection process
as mentioned in the notification, on 11.09.2013 the KPSC published the
first Ranked List (RL-I). On 4.11.2013, the KPSC issued advice on the
basis of the first Ranked List (RL-I) against 9 fresh
vacancies (for short,
“first advice”) which included the vacancies occurred from the date of
the notification till 17.10.2013.
5. The aggrieved candidates approached the Kerala Administrative
Tribunal (for short, “the Tribunal”), by way of O.A. 2395 of 2013 and
other such applications against the decision of the KPSC to have a unified/
consolidated ranked list and for not having two lists; a main and a
supplementary list (which would include candidates from reserved
category).They prayed for interim relief(s), which read thus: -
“This Hon’ble Tribunal may be pleased to direct the 3rd respondent
not to advice any candidates who secured less than 49 marks in
the preliminary examination, from Annexure A6 rank list against
the vacancies available for open competition candidates, pending
disposal of the Original Application.”
While admitting the O.A. on 5.12.2013 [after 85 days from the
publication of the first Ranked List (RL-I)], the Tribunal granted interim
relief as prayed and observed thus: -
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“… … … if any candidate who secured less than 49 marks in the
preliminary examination has been advised against open competition
turn, his advice and appointment shall be subject to further orders
in this Original Application and such candidates shall be alerted
about this order by the third respondent… … …”
The KPSC, during the pendency of proceedings issued another
advice in respect of empanelled candidates in the first Ranked List
(RL-I) who had secured more than 49 marks against a total of 12
vacancies on the basis of the first Ranked List (RL-I) on 20.1.2014 (for
short, “second advice”).
6. On 20.2.2014, the Tribunal allowed the O.A. by directing the
KPSC to re-cast the first Ranked List (RL-I) by bifurcating it into main
list and the supplementary list. It held thus: -
“28. In the result, the applicants are entitled to succeed.
Accordingly, the PSC is ordered to recast Annexure A6
rank list with main list and supplementary lists.The
candidates who secured 49 and above marks in the objective
type examination alone shall be included in the main list of
Annexure A6. Those candidates who participated in the further
selection process after the objective type examination, but without
obtaining 49 marks in that examination shall be included in the
supplementary lists for the respective communities. Even if any
candidates included in the supplementary lists obtained more marks
than the candidates included in the main list, they are not eligible
for inclusion
in the main list. The advice and appointment, if any,
from Annexure A6 of candidates who secured less than 49 marks
in the objective type examination being dependent proceedings
will naturally collapse and fall to ground. The advice of such
candidates shall be reviewed and recalled by the PSC and
appointments, if any, made of them or the orders sending them for
training are null and void and they have no legal efficacy. It is so
declared. The State Police Chief shall recall them. The PSC shall
publish a revised rank list in the place of Annexure A6 within one
month from the date of receipt of a copy of this order. The advices
made of ineligible persons, in the light of the revised rank list, shall
be reviewed and cancelled within one month thereafter. The
advice and appointment of candidates and their sending for
training, etc. who are otherwise eligible will not be affected
by this order. That means, they can go for training. Only
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
[A. M. KHANWILKAR, J.]
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the candidates who got less than 49 marks in the objective
type examination and are sent for training before their turn
arose, as per the revised rank list shall be recalled.
   (emphasis supplied)
The order of the Tribunal was assailed before the High Court by
way of writ petitions (O.P. (KAT) Nos. 108/2014, 110/2014, 112/2014
and 114/2014). While admitting the said petitions on 12.3.2014, the High
Court issued an order whereby it restrained the KPSC to advise any
further candidate who had secured less than 49 marks in the objective
test. Vide judgment dated 8.8.2014, the High Court eventually dismissed
the petitions and upheld the Order passed by the Tribunal.Two appeals
to this Court by special leave were then preferred by the aggrieved
candidates against the decision of the High Court, bearing S.L.P. (C)
Nos. 28428/2014 and 28743/2014, wherein on 3.11.2014 [418 days after
the publishing of the first Ranked List (RL-I)], this Court issued notice
and ordered thus: -
“Issue notice. Dasti, in addition, is permitted.
Status quo, as on today, shall be maintained in the meantime”
On 13.10.2015, the civil appeals were finally allowed and the
judgments of the Tribunal and the High Court were set aside; and the
consolidated first Ranked List (RL-I) dated 11.9.2013 came to be upheld.
Pursuant to the disposal of the civil appeals by this Court, the KPSC on
11.11.2015 made a third and final advice (for short, “third advice”)
from
the first Ranked List (RL-I), which included vacancies occurred from
31.01.2014 till 31.01.2015.
Advice made from the first Ranked List (RL-I)
Date 
of 
Receipt 
Date 
of 
Requisition 
Date 
of 
Occurrence  
No. 
& 
Nature 
of 
Vacancy  
Date of Advice
No. 
of 
unfilled 
vacancies 
Rem-
arks  
29.06.2007
29.04.2009
9 Fresh
04.11.2013
NIL
08.02.2012
10.02.2012
132 Fresh
12.09.2012
13.09.2012
25 Fresh
08.03.2013
12.03.2013
27 Fresh
29.07.2013
29.07.2013
63 Fresh

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1. On 19.04.2016, vide letter by The Inspector General of Police (Training), the
candidates advised on 11.11.2015, were provisionally appointed. Their training was to
start on 01.05.2016 and failure to report would entail as reporting of the vacancy to
PSC.
7. However, during pendency of Civil Appeals (C.A. Nos. 8356/
2015 and 8537/2015 @ SLP(C) Nos. 28428/2014 and 28743/2014),the
KPSC had released a new list on 26.5.2015 [for short, “second Ranked
List (RL-II)”] and thereby the first Ranked List (RL-I)was treated as
ceased to exist on 25.5.2015.
Advice made from the second Ranked List (RL-II)
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
[A. M. KHANWILKAR, J.]
15.10.2013
17.10.2013
24 Fresh

02.12.2013 
06.12.2013 
12 Fresh 
20.01.2014

22.02.2014 
17.02.2014 
31.01.2014 
36 Fresh

03.03.2014 
22.02.2014 
NA 
5 NJD

12.05.2014 
29.04.2014 
15.04.2014 
3 Fresh

25.07.2014 
10.07.2014 
30.06.2014 
9 Fresh

23.07.2014 
23.07.2014 
NA 
9 NJD
02.08.2014 
01.08.2014 
31.07.2014 
12 Fresh 
11.11.20151
21.10.2014 
21.10.2014 
15.10.2014 
3 Fresh + 2 
NJD 
05.11.2014 
05.11.2014

137 Fresh

23.02.2015 
20.02.2015 
31.01.2015 
5 Fresh

22.08.2015 
22.08.2015 
31.01.2015 
118 Fresh

Total advise: 631. Rank list expired on 
25.05.2015 
1
Date of Receipt
Date of 
Requisition  
No. & Nature of 
Vacancy 
Date of Advice
No. of Unfilled 
Vacancies 
Remarks
19.10.2015
07.10.2015
1 NJD
23.07.2018
12.07.2016
12.07.2016
93NJD
26.02.2019
Advised as per 
Court Order 
11.05.2018 
11.05.2018 
162 Fresh
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8. Be that as it may, on 14.3.2019 the KPSC notified a subsequent
list [for short, “third Ranked List (RL-III)”] for the said post.
Advice made from the third Ranked List(RL-III)
9. It may be apposite to also refer to other parallel litigation(s)
concerning the first Ranked List (RL-I), which may have bearing on the
outcome of these Civil Appeals; First, candidates from the first Ranked
List (RL-I) had approached the Tribunal vide O.A. No. 440/2014 against
the KPSC, seeking reporting of vacancies. The same came to be
dismissed by the Tribunal vide order dated 21.3.2014. However, the High
Court (in O.P. (KAT) 200 of 2014) vide order dated 26.8.2014, directed
23.05.2018
23.05.2018
12 Fresh + 5 AV
23.07.2018
* Only 5 
advised. 
12 
advised 
later. 
25.05.2018
25.05.2018
2 NJD
23.05.2018
23.05.2018
17 (12 vacancies 
advised) 
25.07.2018
11.07.2018
11.07.2018
9 Fresh
23.07.2018
Total advise: 284. 
Ranked List expired on 25.07.2018 
Date of 
Receipt
Date of 
Requisition
Date of 
Occurrence 
No. & Nature 
of Vacancy 
Date of 
Advice
No. of 
unfilled 
vacancies
Remarks 
16.10.2018
15.10.2018
28 NJD
08.04.2019
30.10.2018
30.10.2018
11 NJD
31.10.2018
30.10.2018
30.10.218
8 NJD + 1 
Fresh 
10.04.2019
09.04.2019
19.12.2018, 
12.03.2019, 
03.03.2019 
10 Fresh + 15 
NJD 
09.05.2019
25.05.2019
24.05.2019
10.04.2019, 
31.10.2018 
19 NJD + 2 
Fresh 
07.06.2019
10.04.2019
03.03.2019
20 Fresh
09.05.2019
Only reported 
on 31.10.2018
17.07.2019
08.07.2019
14 NJD
Rotation 
approved on 
06.08.2019. 
But not 
released. 
20.08.2019
15.08.2019
20 NJD
To be advised 
16.10.2019
16.10.2016
30.08.2019, 
10.10.2019 (2 
Fresh) 
19 NJD + 2 
Fresh
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Respondent No. 2 herein (the State Police Chief, Headquarters) to report
50% of 274 (i.e., 137) vacancies, to be filled by direct recruitment, so
that the KPSC can advise the candidates in an expeditious manner. Failure
on the part of the authority to report about the stated vacancies, gave
rise to Contempt Case (C) 562 of 2015. However, after the status quo
order passed by this Court (dated 3.11.2014) was brought to the notice
of the High Court, the contempt case came to be dismissed; and the
special leave petitions (S.L.P. (C) Nos. 2023-24 of 2016) preferred against
that order were also dismissed by this Court; Second, some candidates
empanelled in the first Ranked List (RL-I)had approached the Tribunal
(in O.A. 2383 of 2014) for reporting of existing vacancies, as the first
Ranked List (RL-I) was to expire soon. Vide order dated 13.7.2015, the
Tribunal directed that a total of 118 vacancies be reported to the KPSC
and the KPSC to issue advice qua the reported vacancies forthwith.
10. Due to publication ofthe second Ranked List (RL-II),
applications (O.As.) were preferred before the Tribunal by aggrieved
candidates including the appellants, seeking direction for reporting of
vacancies and issuance of advice on the basis of the first Ranked List
(RL-I) (till that list ceases to exist) and to declare that the first Ranked
List (RL-I) was valid and had not expired and would remain in force till
the expiry of one month from the date on which the last batch
of
candidates is advised from that list (in accordance with the first proviso
to Rule 13 of the Kerala Public Service Commission Rules of Procedure,
1976 – for short, “the 1976 Rules”).The Tribunal while admitting the
O.As. (O.A. No. 306 of 2016 and connected O.As.), vide order dated
5.4.2016, directed provisional reporting of 285 vacancies before 11.4.2016
and that no advice be made against those provisional reported vacancies.
On 14.7.2017, after analysing the 1976 Rules, the Tribunal dismissed the
applications by observing thus: -
“Accordingly, we hold as follows: -
(a) The ranked list dated 11.9.2013 has expired on 26.5.2015 due
to cancellation by the Public Service Commission.
(b) The sanctioned strength being 2024, for direct recruitment
50% of the same (1012) will have to be reckoned.
(c) There are no other excess vacancies to be reported for filling
up the 50% quota except 93 NJD vacancies reported on 12.7.2016.
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
[A. M. KHANWILKAR, J.]
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(d) The NJD vacancies will have to be filled up by advising
candidates from the ranked list dated 26.5.2015 for which the
Public Service Commission is directed to take steps.
……………..”
11. The appellants, therefore, preferred writ petitions before the
High Court seeking direction to report 362 vacancies, to advice 93 NJD
vacancies on the basis of the first Ranked List (RL-I) and to declare the
decision of the KPSC of cancelling the first Ranked List (RL-I) as illegal,
amongst other reliefs. On 16.11.2018, the Division Bench of the High
Court passed a “Reference Order”, thereby referred the matter to Full
Bench, having noticed the decision of a Co-ordinate Bench, which in its
opinion was debatable. However, the Division Bench also made certain
observations.  It observed that the first Ranked List (RL-I) was in
operation only for 85 days (till 5.12.2013 - due to an interim order passed
by the Tribunal) and that there remained a total period of 280 days for
completion of the duration of the first Ranked List (RL-I)after 13.10.2015
in accordance with the respective Rules. Thus, it held that the first Ranked
List (RL-I)expired only on 19.7.2016. The Division Bench then proceeded
to observe that there cannot be an automatic cancellation of the first
Ranked List (RL-I), thereby it must remain in force for a minimum period
of one year (till 19.7.2016). It concluded by observing that the 93 NJD
vacancies reported on 12.7.2016,
should be filled up by the candidates
empanelled in the first Ranked List (RL-I). The Division Bench, however,
noticedthe dictum in Kerala Public Service Commission vs. Dr.
Kesavankutty Nair & Ors.2 wherein the maxim actus curiae neminem
gravabit was not held to be applicable to decide the life of a Ranked
List. The Division Bench observed thus:-
“10. But we are confronted with the decision in Kerala Public
Service Commission v. Dr. Kesavankutty Nair [1977] KLT 818
(DB)]cited by the contesting respondents which may have a
bearing on this batch of cases. It has been held therein that the
maxim – actus curiae neminem gravabit – cannot be made
applicable to decide the life of a ranked list published by the PSC.
The reason stated is that inclusion of the name of a candidate in a
ranked list does not confer him any right to claim appointment
relying on Rule 3(b) of the Kerala State & Subordinate Services
2 ILR 1977 (2) Kerala 687
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Rules. Firstly, we fail to understand the relevancy of Rule 3(b) of
the KS & SSR in the applicability of the maxim afore-quoted
which can be called in aid by any one prejudiced by an act of
Court. Secondly, the decision in Dr. Kesavankutty Nair’s case
(supra) concerned a ranked list published on 27.2.1973 much
before the Rules came into force on 16.8.1976. The Division
Bench obviously did not have the opportunity to consider
the purport and import of the words ‘shall remain in force
for a period of one year’ in Rule 13 of the Rules. We doubt
the correctness of the decision in Dr. Kesavankutty Nair’s
case (supra) and judicial propriety compels us to refer this
batch of cases to a Full Bench therefore.”
(emphasis supplied)
12. The Full Bench vide impugned judgment dated 21.2.20193,
analysed Rules 13 and 14 of the 1976 Rules and held that Rule 14
mandates the KPSC to advise candidates from a Ranked List in force in
respect of all the vacancies reported and pending before them, as also in
respect of vacancies which may be reported to them during the period
the said Ranked List is still in force, and such candidates would get
guaranteed entitlement for being considered against the reported
vacancies. However, after going through the various orders passed and
taking into account the efficacy of the first proviso to Rule 13, the Full
Bench held that the first Ranked List (RL-I) expired on 1.6.2016.  For,
admittedly, the last batch in reference to the first
Ranked List (RL-I)
was advised by KPSC on 11.11.2015; and their training had begun on
1.5.2016.The Full Bench then adverted to the settled legal position
regarding the maxim of actus curiae neminem gravabit, which means
the act of the Court shall prejudice no one. It observed that no prejudice
had been caused to any of the appellants in these cases.  Further, even
if there was to be no litigation(s) and even if there were to be no interim
order(s) issued, the empanelled candidates would get advisement only
against the vacancies reported during the life of the Ranked List.
However, in this case,the first Ranked List (RL-I) had already expired
on 1.6.2016, before the 93 NJD vacancies were reported to the KPSC
on 12.7.2016.  Lastly, the Full bench adverted to Dr. Kesavankutty
Nair (supra) and noted that the principle enunciated therein (that
candidates included do not gain an indefeasible right to be appointed) is
3Unnikrishnan Nair G.S. and Anr. vs. State of Kerala and Ors. 2019 (2) KLJ 152
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
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restated in judgments of this court including (in S.S. Balu & Anr. vs.
State of Kerala & Ors.4 and Shankarsan Dash vs. Union of India5)
and thus it needed no further discussion. In conclusion, the Full Bench
observed thus:-
“88.To sum up:
(a) Normally, it is only in two specific contingencies can the expiry
of a rank list obtain postponement; namely, if a court interdicts the
appointing authorities from reporting vacancies to the Public
Service Commission during its life time; or, if a court prohibits the
Public Service Commission from making advice from the rank list
within the period of one year or such other periods as may be
statutorily prescribed, after it is brought into force.
(b) Therefore, in the case at hand, going by the first proviso to
Rule 13 of the Kerala Public Service Commission Rules of
Procedure, the Rank List dated 11.09.2013 will expire on
completion of one month after the training of the last batch advised
from it commenced.
(c) Since the date of commencement of training of the last batch
was concededly on 01.05.2016, axiomatically, the Rank List dated
11.09.2013 would expire on 01.06.2016.
(d) Consequently, the 93 Non Joining Duty vacancies admittedly
reported on 12.07.2016 cannot go to the credit of the candidates
included in the Rank List dated 11.09.2013.
(e) The principles of actus curiae neminem gravabit are not
attracted in these cases, since the petitioners and other candidates
in the
Rank List dated 11.09.2013 have obtained all the vacancies
that would have been entitled to them even if there were no
litigations or interim orders.
(f) The views and conclusions in Kerala Public Service
Commission v. Dr. Kesavankutty Nair (1977 KLT 818), that a
candidate in a rank list does not get an indefeasible right to be
appointed, is certainly good law and such position does not change
even after the coming into force of the PSC Procedure Rules
because these Rules only offer the candidates, included in a rank
list, a statutory right to be considered against the vacancies
4 (2009) 2 SCC 479
5 (1991) 3 SCC 47
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available and reported during the life time of such list, but not to
be appointed.
That brings us to the question if these original petitions need to be
placed before the Division Bench for final resolution or whether
we would be justified in issuing judgment.
Since the relief prayed for in these original petitions, except O.P.
(KAT) no. 362/2017, are exclusively for appointment from the
Rank List brought into force on 11.09.2013, to the 93 NJD
vacancies reported on 12.07.2016 and since our answer to this
claim is to the negative, we are of the view that nothing else
survives in these original petitions and resultantly, invoking powers
under Section 7 of the Kerala High Court Act, we dismiss those
Original Petitions.
… … … “
Submissions of the Parties
13. The appellants have assailed the approach of the Full Bench.
According to the appellants, the Full Benchpalpably erred in examining
the issues, in particular factual aspects,that were already decided by the
Division Bench.  It could have only discussed the issue or question referred
to it by the Division Bench regarding the correctness and applicability of
the dictum in Dr. Kesavankutty Nair (supra). In the present case, the
Division Bench had already allowed the appellant’s prayers, by directing
the KPSC to advise candidates from the first Ranked List (RL-I) and
holding that the first Ranked List (RL-I) expired on 19.7.2016, therefore,
the Full Bench could not have deviated from that finding of fact.
14. It is further submitted that the plea taken by the Respondent
No. 2 (State Police) and the Respondent No. 3 (KPSC) is against their
own admission of there being no “further selection process related to
this post”6 due to the status quo order passed by this Court on 3.11.2014
and until final disposal of civil appeal on 13.10.2015. Therefore, the
decision of the KPSC entails retrospective cancellation of the first Ranked
List (RL-I) on 25.5.2015; and also publication of a new list (second
Ranked List on 26.5.2015), thereby treating the first Ranked List (RL-I)
as “ceased to exist” on 25.5.2015. This action was wholly arbitrary and
impinged upon the rights of the appellants enunciated in Rule 14 of the
6In Counter Affidavit of Contempt Case (C) 562 of 2015
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
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1976 Rules. It is also submitted that KPSC was empowered under the
1976 Rules (Rule 10) to adopt a special procedure regarding such cases
in order to reduce the hardship to be caused to the candidates and who
were prejudiced due to no fault of theirs.
15. The appellants adopted the view taken by the Division Bench
regarding the date of expiry of the first Ranked List (RL-I)being 19.7.2016
due to the judicial intervention vide interim order(s) passed, as a result
whereof an embargo was placed on giving effect to the first Ranked
List (RL-I) for a period of 22 months (from 5.12.2013 till 13.10.2015).
Further, contended the appellants, the KPSC and the State Police had
failed to adhere to the order passed by the Tribunal (dated 5.4.2016 in
O.A. No. 306 of 2016 and connected O.As.) to report existing vacancies
and to refrain from issuing any further advice. The appellants are also
aggrieved by the inaction of the KPSC and the State Police in particular,
for non-reporting and delayed reporting of the existing vacancies,even
when several vacancies had already arisen due to NJD during the life of
the first Ranked List (RL-I) and instead in doing so on 12.7.2016.
According to the appellants, it was the fault of the Respondents, which,in
no way,can be attributed to the appellants.
16. The appellants have invoked the maxim actus curiae neminem
gravabit. According to them, it is the duty of the Court to act equitably.
The
appellants drew support from the judgments of this Court in Jang
Singh vs. Brij Lal& Ors.7, Atma Ram Mittal vs. Ishwar Singh Punia8
and South Eastern Coalfields Ltd vs. State of M.P. & Ors.9.
17. The appellants rest their case by submitting that there are
sufficient vacancies and only 22 candidates from the first Ranked List
(RL-I) are left pursuing their rights before this Court either directly or
through applications. Therefore, this Court ought to invoke Article 142
of the Constitution of India and to do complete justice to the parties,direct
KPSC to issue advice to accommodate the left out 22 candidates from
the first Ranked List (RL-I) against the existing vacancies.
18. The respondents have supported the conclusions recorded by
the Full Bench. It is urged that the Full Bench was obliged to analyse the
factual aspects of the case before it to effectively answer the reference
made by the Division Bench and in the process could finally dispose of
7 1964 (2) SCR 145
8 1988 (4) SCC 284
9 2003 (8) SCC 648
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the petitions itself as per the High Court Act/Rules. It is the case of
KPSC that the first Ranked List (RL-I) had expired on 25.5.2015 pursuant
to publication of the second Ranked List (RL-II) on 26.5.2015. On
20.10.2015, the KPSC took a conscious decision that as a new list has
been published, the conditions regarding the training as predicated in the
Rules (first proviso to Rule 13 of the 1976 Rules) were unavailable.  In
any case, the first Ranked List (RL-I) had expired on 1.6.2016 (as
observed by the Full Bench). For, the last batch of candidates from first
Ranked List (RL-I) was advised on 11.11.2015, for whom training had
begun on 1.5.2016.  In view of the first proviso to Rule 13, the first
Ranked List (RL-I), in law,expired on 1.6.2016. As the 93 NJD vacancies
were reported thereafter on 12.7.2016, it would be of no avail to the
candidates empanelled in the first Ranked List (RL-I), which had ceased
to exist. It is also submitted that the Full Bench justly held that no
prejudice had been caused to the appellants because of the interim order(s)
passed.  Notably, even the second Ranked List (RL-II) issued on
26.5.2015 came to be cancelled with effect from 25.7.2018 and pursuant
to the decision of the Full Bench, a third list (RL-III) has been issued on
14.3.2019 and further an advice has been issued by KPSC in reference
to that list. In other words, the existing reported vacancies will have to
be filled up hereafter on the basis of the third
Ranked List (RL-III). The
appellants cannot be accommodated against these vacancies by
overlooking the claims of empanelled candidates in the third Ranked
List (RL-III).
19. The respondents have relied on Union of India & Ors. vs.
Kali Dass Batish& Anr.10 to contend that candidates included in a
Ranked List have only a statutory right to be considered against the
vacancies available and reported during the life time of such list.
20. During the pendency of these appeals, intervention
application(s) have been filed by the candidates empanelled in the third
Ranked List (RL-III) and would urge that their right flowing from third
Ranked List (RL-III) cannot be undermined by accommodating the
appellants against the existing vacancies, to which they had no claim.  It
is their case that the first Ranked List (RL-I) was in force for more than
one year and eight months and a total of 631 candidates have been
advised from that list. Further, considering Rule 13 of the 1976 Rules
and the proviso in particular, in law, the first Ranked List (RL-I) ceased
to existon 1.6.2016. Reliance is placed on the exposition that recruitment
10 2006 (1) SCC 779
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rules made under Article 309 of the Constitution mustbe followed strictly
and not in its breach (as held in Dr. M.A. Haque & Ors. vs. Union of
India & Ors.11, K. Thulaseedharan vs. Kerala State Public Service
Commission Trivandrum& Ors12 and Deepa Keyes vs. Kerala State
Electricity Board & Anr.13).  Resultantly, the 93 NJD vacancies reported
on 12.7.2016 and all vacancies arising thereafter could be filled only by
the empanelled candidates from the third Ranked List (RL-III) until a
fresh Ranked List is issued and not from expired lists [the first Ranked
List (RL-I) and the second Ranked List (RL-II), respectively].
21. We have heard Mr. Dushyant Dave, learned senior counsel
appearing for the appellants, Mr. Vipin Nair, learned counsel for the
KPSC, Mr. G. Prakash, learned counsel for the State of Kerala and
Mr. P.V. Surendranath, learned senior counselfor the intervenors.
Consideration
22. After cogitating over the rival submissions, the first issue which
needs to be examined is about the limitation on exercise of jurisdiction
by the Full Bench of the High Court, in a reference made by the Division
Bench.  Ordinarily, the Full Bench is expected to decide only those issues
which are referred to it by the Division Bench and must eschew from
examining merits of the case as such.  We are fortified in so observing in
light of the dictum of this Court in T.A. Hameed vs. M. Viswanathan14.
At the same time, we are also
guided by the dictum of this Court in State
of Punjab vs. Salil Sabhlok & Ors.15. In that case, the Full Bench of
the High Court while deciding the Reference, adjudicated other matters.
In the concurring opinion, Justice Madan B. Lokur, as he then was,
observed thus: -
“Additional questions framed by the Full Bench
137. The learned counsel supporting the appointment of Mr.
Dhanda submitted that the Full Bench could not expand the scope
of the reference made to it by the Division Bench, nor could it
frame additional questions.
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12 (2007) 6 SCC 190
13 (2007) 6 SCC 194
14(2008) 3 SCC 243
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138. Generally speaking, they are right in their contention,
but it also depends on the reference made.
139. The law on the subject has crystallised through a long line of
decisions and it need not be reiterated again and again:
… … …
140. There is no bar shown whereby a Bench is precluded from
referring the entire case for decision by a larger Bench—it depends
entirely on the reference made. In any event, that issue does not
arise in this appeal and so nothing more need be said on the subject.”
In view of the above, our answer to the issue under consideration
must depend on the Reference Order as made by the Division Bench.
At the same time, we must hasten to advert to the Kerala High Court
Act, 1958 (for short, “the High Court Act”) providing for the procedure
on Reference to Full Bench. Section 7 of the said Act reads thus: -
“7.Procedure on reference to Full Bench:-
When a question of law is referred to a Full Bench, the Full Bench,
may finally decide the case or return it with [sic] an expression
of its opinion upon the question referred for final adjudication by
the Bench which referred the question or, in the absence of either
or both of the referring judges, by another Bench.”
(emphasis supplied)
On a plain reading of this provision, it is amply clear that the Full
Bench is competent to finally decide the case itself. It is an enabling
provision. Nevertheless, we may first advert to the nature of Reference
made by the Division Bench in the present
case vide order dated
16.11.2018. The Division Bench in its Reference Order, had articulated
the question posed by the appellants herein as to whether the candidates
from the first Ranked List (RL-I) or from the second Ranked List
(RL-II) have to be advised for the 93 (NJD) vacancies reported to the
KPSC on 12.7.2016. From paragraph 5 onwards of the Reference Order,
the Division Bench adverted to the relevant facts and noted that the
candidates in the first Ranked List (RL-I) have to be advised for
appointment to fill up the 93 NJD vacancies reported on 12.7.2016.  After
so observing, the Division Bench adverted to Rule 13 of the 1976 Rules
and two maxims of equity –actus curiae neminem gravabit (an Act of
Court shall prejudice no man) and lex non cogit ad impossibilia (the
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law does not compel the man to do that which he cannot perform) – to
be apposite, but entertained some doubt about the observations of
Coordinate Bench of the same High Court in Dr. Kesavankutty Nair
(supra). Resultantly, the Division Bench thought it appropriate to refer
the entire matter to the Full Bench. The relevant extract of the reference
order reads thus:-
‘‘………………
We doubt the correctness of the decision in Dr. Kesavankutty
Nair’s case (supra) and judicial propriety compels us to refer this
batch of cases to a Full Bench therefore.
The counsel submits that an early hearing of the cases is warranted
since the 93 NJD vacancies have not yet been filled up and that
the candidates have been anxiously waiting for their turn to come.
The Registry shall therefore place the papers before the Hon’ble
Chief Justice for appropriate constitution of the Full Bench and
an early resolution of the dispute.’’
On perusal of the Reference Order, it appears that the Division
Bench analysed the factual matrix of the case to opine that the candidates
empanelled in the first Ranked List (RL-I) have to be advised for
appointment to fill up the 93 NJD vacancies reported on 12.7.2016.
However, it stopped short of issuing direction to the respondents on account
of the exposition in Dr. Kesavankutty Nair (supra) and the purport of
the governing rules. Further, the Reference Order had not formulated
any specific question to be answered by
the Full Bench, but an omnibus
direction issued to the Registry to place the papers before the Hon’ble
Chief Justice for constitution of the Full Bench and “an early resolution
of the dispute”. Such an omnibus reference would include exercise of
jurisdiction by the Full Bench under Section 7 of the High Court Act, to
finally decide the case itself. Ostensibly, it may appear as if Full Bench
was sitting over in appeal on the findings of fact already recorded by the
Division Bench. However, we find from the impugned judgment of the
Full Bench that it was fully conscious about the limited scope of enquiry
in Reference placed before it, but after due consideration of all aspects,
deemed it necessary to analyse the factual matrix of the case in its
correct perspective to justly answer the Reference. In the process, the
Full Bench had to deviate from the observation made by the Division
Bench that the candidates empanelled in the first Ranked List (RL-I)
ought to be advised for appointment to fill up the 93 NJD vacancies
reported on 12.7.2016,as, in its view, in law, the first Ranked List
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(RL-I) had expired on 1.6.2016. In other words, the Full Bench was
fully conscious of the scope of its jurisdiction, as is evinced from the
opening statement, in paragraph four of the impugned judgment. After
recording the factual matrix and rival submissions, in paragraph 47 of
the impugned judgment, the Full Bench noted that it was proceeding to
answer the legal contentions within the parameters of the applicable law
and after adverting to Rules 13 and 14 of the 1976 Rules,it analysed the
factual matrix to conclude that since the last batch was advised by the
KPSC from the first Ranked List (RL-I) on 11.11.2015 and it had joined
training on 1.5.2016 in terms of first proviso to Rule 13, the first Ranked
List (RL-I) ceased to operate from 1.6.2016 (namely, on completion of
one month from 1.5.2016).  We may usefully reproduce paragraphs 47
to 49 of the impugned judgment, wherein the Full Bench observed
thus: -
“47. With the dialectical submissions of the parties recorded as
above, we will now proceed to answer the legal contentions within
the parameters of the applicable law.
48. The sure way for finding answers to the various issues impelled
in the Reference Order is to examine and analyse the specific
provisions of the PSC Procedure Rules, especially, as to what is
meant by a rank list, as to the stipulations relating to its life, as to
the entitlement of the candidates in the rank list to be appointed to
the vacancies reported and the manner in which
such rank list
would normally expire.
49. In order to obtain a complete answer to the afore questions,
we must first have a glance at the statutory provisions and
prescriptions that govern the field, before the submissions of the
parties are analysed.’’
23. Thus understood, in the peculiar facts of this case, the Full
Bench had no other option but to analyse the factual matrix for
ascertaining the applicability of extant rules and to answer the matters in
issue involved in Reference appropriately. Suffice it to observe that the
impugned judgment cannot be overturned on the basis of threshold
(technical) plea under consideration. We are inclined to say so also
because this is the second round of proceedings emanating from the
selection process which had commenced with issuance of notification
as back as 28.9.2007, for appointment to the post of Sub-Inspector of
Police (Trainee). We are of the considered opinion that no fruitful purpose
will be served by relegating the parties before the High Court on
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technicality. That objection, for the reasons already recorded, does not
commend to us. Instead, in the peculiar facts of this case, we deem it
necessary to answer the merits of the controversy so as to give quiet us
thereto concerning selection process commenced as back as in 2007
vide notification dated 28.9.2007.
24. In that view of the matter, we proceed to examine the purport
of relevant rules and the applicability thereof to the fact situation of the
present case, adverted to by the Full Bench in the impugned judgment to
conclude that the first Ranked List (RL-I) published on 11.9.2013 ceased
to exist on 1.6.2016. Before we dilate on this aspect, it would be apposite
to advert to relevant rules, namely, the 1976 Rules framed in exercise of
powers under Article 309 of the Constitution. Rules 13 and 14 thereof
read thus: -
“13. The ranked lists 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 a new list
after the expiry of the minimum period of one year or till
the expiry of three years whichever is earlier:
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.
… … …
Provided further that a ranked list from which no candidate is
advised during the period of one year from the date on which it
was brought into force shall be kept in force till the expiry of three
years from the said date and in a case where no candidate is
advised from the ranked list till the expiry of the said period of
three years, the duration of the ranked list shall be extended by
the Commission for a further period of one year or till at least one
candidate is advised from the list whichever is earlier.
… … …
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14. The Commission shall advise candidates for all the
vacancies reported and pending before them and the
vacancies which may be reported to them for the period
during which the ranked lists are kept alive in the order of
priority, if any, and in the order of merit subject to the rules
of reservation and rotation, wherever they are applicable.
Provided that the advice of candidates by the Commission from
the ranked list kept alive under the 5th Proviso to 13 shall be confined
to the vacancies that actually arose during the normal period of
validity of the ranked lists under Rule 13 and certified to be as
such by the Appointing Authorities reporting vacancies to the
Public Service Commission.
… … …”
    (emphasis supplied)
As regards the interpretation of Rule 13, the Full Bench observed
thus: -
‘‘51. We notice that all the parties in these cases are in unison
that it is the afore Rule and its first proviso, which alone are
applicable in these cases, the posts in question being ones to which
automatic appointment is made after a training course is completed.
52. Going solely by the afore Rule, a Rank List published by the
PSC will remain in force:
a) either for a period of one year from the date on which it is
brought into force; or
b) till the publication of a new list after the expiry of the
minimum period of one year; or
c) till the expiry of three years; whichever is earlier.
53. Pertinently, after the Rule provides thus, its first proviso, which
is
exclusively confined in its application to a Rank List of
candidates for admission to a training course that leads to automatic
appointment into service or post, postulates that such a Rank List
will cease to be in force either:
a) after one year from the date of finalization of the Rank List;
or
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
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b) after one month from the date of commencement of the
training of the last batch, selected from the said list within a
period of one year from the date of finalization of the said list;
whichever is later.  (emphasis supplied)
54. The sum total of these provisions, which position is also
expressly conceded by the various counsel for the petitioners, is
that the First Rank List dated 11.09.2013 would have, normally, in
the absence of a challenge to it, remained in force either till
10.09.2014 or till a date after one month from the date of
commencement of the training of the last batch of candidates
selected from that list within a period of one year from its
finalization.’’
On a plain reading of Rule 13, it is amply clear that the Ranked
List published by the Commission (KPSC) would remain in force for a
period of one year from the date on which it was brought into force. It
further envisages that the said list will continue to be in force until the
publication of a new list after the expiry of the minimum period of one
year or till the expiry of three years, whichever is earlier. The first proviso
is an exception to the general rule. It predicates that the general rule
shall not apply in respect of Ranked List 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
finalization 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. It is only this
excepted eventuality which may elongate the tenure of the Ranked List
published by the Commission (KPSC) beyond one year. The first Ranked
List (RL-I) was published on 11.9.2013, but because of fortuitous situation,
the final (third) advice from the first Ranked List (RL-I) was made by
the KPSC on 11.11.2015 and the last batch of 339 candidates so advised
was sent for training on 1.5.2016. Resultantly, the consequence provided
by the first proviso to Rule 13 got triggered, whereby the first Ranked
List (RL-I) ceased to operate in law, with effect from 1.6.2016.
25. Be that as it may, the Full Bench adverted to the factual matrix
to discern the lifetime of the first Ranked List (RL-I) in the following
words: -
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‘‘66. As has been said by us more than once before, the First
Rank List came into force on 11.09.2013 and continued till
05.12.2013 without any interdiction whatsoever. On this date, the
KAT issued an interim order in O.A. No.2395/2013, directing the
PSC not to advise persons, who had obtained less than forty nine
marks in the Preliminary Examination, to the Open Competition
turns. Even though this order certainly had the potential of changing
the manner of operation of the First Rank List, it is luculent that
there was no total interdiction and that the PSC was fully enabled
to advise candidates from it, which, in fact, they did.
67. Thereafter, the KAT issued a final order on 20.02.2014 directing
the PSC to recast the First Rank List, which was approved by
this Court by judgment dated 08.08.2014. Pertinently, all these
dates were within a period of one year from the date of coming
into force of the First Rank List, but there was no absolute
interdiction in operating the said rank list.
68. In fact, it is on record that the PSC had made two advices,
namely on 04.11.2013 and 20.01.2014 to all the then available
vacancies. Ineluctably, the second advice was after the interim
order of the KAT, which, as the learned Standing Counsel informs
us, was enabled because, there was no candidate, who had
obtained below forty nine marks in the Preliminary Examination,
required to be eliminated at that state, thus allowing the PSC to go
on smoothly with that advice on
20.01.2014, strictly as per the
First Rank List. In other words, two sets of advices made by the
PSC were not impacted by the interim order of the KAT and
hence, going by the first proviso to Rule 13, the First Rank List
could have expired one month after the second batch, namely,
who were advised on 20.01.2014, commenced their training, if no
further vacancies were reported thereafter.
69. That said, however, it is also on record and is conceded by the
petitioners that periodic reporting of vacancies were made to the
PSC by the appointing authority thereafter, but that on account of
the interim order of the Hon’ble Supreme Court dated 03.11.2014,
whereby the PSC was asked to maintain status quo, the PSC
took the position that it could not advice any further batches against
the then available reported vacancies. This is clear from the stand
of the PSC in their counter affidavit in O.P.(KAT)No.256/2017
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
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(afore-extracted) that advice against the vacancies reported from
February 2014 onwards had to be kept pending due to this order.
70. Therefore, even as per the PSC, they were fully inhibited by
the interim order of the Hon’ble Supreme Court from making any
further advice and we are, therefore, of the view that the petitioners
are justified in saying that the First Rank List could not expire
during the period of that order.
71. The Civil Appeal was, thereafter, disposed of by the Hon’ble
Supreme Court on 13.10.2015, approving the First Rank List dated
11.09.2013, thus setting aside the judgment of this Court as also
that of the KAT and we see that the PSC had, consequent to this,
made a third advice on 11.11.2015. This action of the PSC was
apposite because the period between the interim order of the
Hon’ble Supreme Court dated 03.11.2014 and the final judgment
dated 13.10.2015, certainly would have to be excluded while
calculating the life of the First Rank List, since, during this period,
there was either a complete interdiction on the PSC to make advice
or the PSC interpreted the interim order of the Hon’ble Supreme
Court to be to that effect. Therefore, this eleven month and odd
period was certainly eligible to be added on to the life span of the
First Rank List and the PSC rightly made an advice of about 339
candidates against the vacancies reported from February 2014
until the date of the said advice. This
batch, thus, for all practical
purposes, became the last batch to be advised from the said rank
list.
72. Viewed from the afore factual perspective, it becomes easy
to determine the expiry of the First Rank List because, going by
the first proviso to Rule 13, it would certainly expire within a period
of one month after the training of this last batch commenced. We
are gratified that the date of commencement of training of this
batch is not disputed with all parties conceding that it was on
01.05.2016. Measured so, the rank list would, therefore, expire
on 01.06.2016.’’
We are in agreement with the analysis of factual matrix of the
case undertaken by the Full Bench. Having said that, we must affirm
the conclusion and application of Rule 13 by the Full Bench, to hold that
the first Ranked List (RL-I) expired on 1.6.2016.
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26. The interim order passed by the Tribunal on 5.12.2013, in no
way interdicted the operation of the first Ranked List (RL-I). As a matter
of fact, none of the advised candidates from the first Ranked List
(RL-I) had secured less than 49 marks in the preliminary examination.
In any case, the original application(s) filed by the appellants before the
Tribunal came to be disposed of on 20.2.2014, which order eventually
became subject matter of Civil Appeal No. 8536/2015 and connected
appeal before this Court. The operation of the first Ranked List (RL-I)
was in a way interdicted for the first time on account of interim order
passed by this Court on 3.11.2014, which stood vacated whilst allowing
the Civil Appeal on 13.10.2015. The one-year period referred to in Rule
13 of the 1976 Rules, as per the general application, would have expired
on 10.9.2014. There was no complete interdiction of the stated list until
3.11.2014 and for that reason, the KPSC was justified in issuing advice
even after the interim order was passed by the Tribunal, namely, on
20.1.2014 (before the status quo order was passed by this Court for the
first time on 3.11.2014). The final advice was admittedly issued on
11.11.2015 after the disposal of civil appeals by this Court on 13.10.2015.
Pursuant to the final (third) advice, the last batch of 339 empanelled
candidates from the first Ranked List (RL-I) was sent for training on
1.5.2016, as a result of which the first Ranked List (RL-I)
ceased to
exist on expiry of one month therefrom i.e. on1.6.2016. This conclusion
has been justly arrived at by the Full Bench disregarding the decision of
the KPSC, dated 26.10.2015 to treat the first Ranked List (RL-I) having
ceased to exist due to publication of second Ranked List (RL-II) on
26.5.2015.
27. The Full Bench also took notice of the fact that the vacancies
were reported after a gap of more than eight months on 12.7.2016 and
that the last (third) advice was made on 11.11.2015. The Full Bench
taking notice of the settled legal position, as expounded in S.S. Balu
(supra), Kerala Public Service Commission vs. Shanil Kumar16, Lal
Sudheer & Ors. vs. Kerala State Road Transport Corporation &
Anr.17, Secretary, Kerala Public Service Commission vs. Sheeja P.R.
& Anr.18 and Nair Service Society vs. Distt. Officer, Kerala Public
Service Commission & Ors.19, went on to hold that by now it is well
16(2002) 1 KLT 604
17(2003) 1 KLT 329
18(2013) 2 SCC 56
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established that the Commission (KPSC) cannot advise any candidate
after the expiry of a Ranked List, even to an NJD vacancy, if such
vacancies are reported after the expiry of the list in question. We agree
with this opinion of the Full Bench. Admittedly, all the appellants were
empanelled in the first Ranked List (RL-I), which, as aforementioned,
had ceased to exist on 1.6.2016. Resultantly, the appellants cannot set
up any claim in respect of vacancies reported thereafter. The NJD
vacancies reported after 1.6.2016 must be filled up from amongst the
empanelled candidates in the fresh Ranked List (i.e. the second Ranked
List (RL-II) published on 26.5.2015 or the third Ranked List (RL-III)
published on 14.3.2019, as the case may be).
28. We will revert to the third issue, which has now become a
side issue and insignificant to the case on hand-as to whether the maxims
- actus curiae neminem gravabit and lex non cogit ad impossibilia
will come to the aid of the appellants. From the analysis of factual matrix
of the case on hand, it becomes evident that there was no complete
interdiction of the first Ranked List (RL-I) published on 11.9.2013 until
the order of status quo was passed on 3.11.2014 by this Court. It is true
that despite the order of status quo, the second Ranked List (RL-II)
came to be published on 26.5.2015. According to the respondents, the
order of status quo must be construed as only restraining the
respondents
from giving effect to the first Ranked List (RL-I) in any manner.
29. Notably, the issue pending consideration in the civil appeal in
which the order of status quo was passed by this Court on 3.11.2014,
was in reference to the directions given by the Tribunal on 20.2.2014 to
re-cast the first Ranked List(RL-I) with main and supplementary lists,
and to refrain from advising candidates who had secured less than 49
marks. As noted earlier, no candidate with less than 49 marks had been
advised either from the final first Ranked List (RL-I) published on
11.9.2013 or the second Ranked List (RL-II) published on 26.5.2015.
Furthermore, this Court while disposing of Civil Appeal No. 8536/2015
and connected appeal on 13.10.2015, to which the appellants were also
party, did not issue any direction to the respondents to report about the
existing NJD vacancies at the relevant time or otherwise, to KPSC, so
as to accommodate the remaining empanelled candidates from the first
Ranked List (RL-I) before giving effect to the second Ranked List
(RL-II) dated 26.5.2015.
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30. Be it noted that grievance about publication of the second
Ranked List (RL-II) during the pendency of appeal before this Court
and despite the order of status quo, was not pursued before this Court
on behalf of the appellants. We find force in the argument of the
respondents that the order of status quo though interdicted processing
of the first Ranked List (RL-I), that restriction stood lifted with setting
aside of the decisions of the Tribunal and the High Court and allowing
the appeal on 13.10.2015. Sans any direction by this Court and challenge
to publication of the second Ranked List (RL-II) on 26.5.2015, nothing
came in the way of the respondents to proceed with the final advice
made on 11.11.2015 relating to 339 empanelled candidates from the first
Ranked List (RL-I), who in turn, commenced their training on 1.5.2016.
31. Considering the indisputable factsand unexceptionable finding
recorded by the Full Bench which commends to us, it must follow that
the appellants were not entitled to base their claim in reference to the
first Ranked List (RL-I), which had ceased to exist on 1.6.2016, by filing
writ petition(s) on 12.10.2017 for the stated reliefs. As the first Ranked
List (RL-I), in law, ceased to exist from 1.6.2016, no relief could be
granted to the appellants and the principles of actus curiae neminem
gravabit and lex non cogit ad impossibilia will be of no avail, as it was
not a case of any prejudice caused to the appellants on account of
Court
order as such.
32. Having said thus, we uphold the judgment of the Full Bench of
the High Court, which is impugned in these appeals.
33. Accordingly, these appeals fail and the same are accordingly
dismissed with no order as to costs. Pending interlocutory applications,
if any, shall stand disposed of.
Divya Pandey
Appeals dismissed.
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
[A. M. KHANWILKAR, J.]