Bobitha Krishnan S. v. Kerala State Public Service Commission and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** **WP(C) NO. 4002 OF 2021** ## **PETITIONER/S:** BOBITHA KRISHNAN.S AGED 41 YEARS D/O.R.RADHAKRISHNAN NAIR, RESIDING AT SREE BHAVAN, KALLIYOOR P.O., TRIVANDRUM 695 042. BY ADV M.S.AMAL DHARSAN ## **RESPONDENT/S:** 1 KERALA STATE PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM 695 004, REP.BY ITS SECRETARY. 2 THE DISTRICT OFFICER KERALA STATE PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, CORPORATION BUILDING, ANDAMUKKAM, KOLLAM 691 001. 3 THE KERALA HEADLOAD WORKERS WELFARE BOARD P.B.NO.2017, SRM ROAD, ERNAKULAM, KOCHI, REP.BY ITS CHIEF EXECUTIVE. BY ADV SRI.S.KRISHNA MOORTHY(ERNAKULAM) ## **OTHER PRESENT:** SC FOR KPSC P.C.SASIDHARAN **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **17.03.2022, THE COURT ON 29.03.2022, DELIVERED THE FOLLOWING:** W.P.(C) No.4002 of 2021 -2- ## **JUDGMENT** Dated this the 29[th] day of March, 2022 The petitioner is included at ranked No.2332 in Ext.P1 Statewide ranked list for the post of Junior Assistant/Assistant Gr.II, LDC etc. On 28.09.2018, the third respondent Board reported 35 fresh vacancies of LD clerks to the PSC. According to the petitioner, based on her rank, she is entitled to be appointed to one among those vacancies. In spite of reporting of 35 vacancies, the PSC advised only three candidates from Ext.P1 rank list. Therefore, queries were made seeking the reason for not reporting the other 32 vacancies. By Ext.P5, the third respondent replied that the 32 vacancies are not filed up in the absence of the directions from the court and also since, supernumerary employees are working in those posts. Thereupon, the petitioner made enquiries and came to know ## W.P.(C) No.4002 of 2021 -3- that physically disabled employees appointed to supernumerary posts of LD clerk and Office Assistants in the third respondent Board, based on G.O.(P) No.40/2013 dated 18.5.2013, had filed W.P.(C) No.36898 of 2018 seeking benefits equivalent to that of regular employees. That writ petition was allowed by Ext.P3 judgment, declaring that the petitioner's are entitled for all benefits on the basis of their appointment to supernumerary posts. Ext.P3 and similar judgments rendered with respect to supernumerary appointment in various establishments was challenged by the Government in writ appeal. By Ext.P6 common judgment, the Division Bench allowed the appeals finding that, appointment of disabled persons to supernumerary posts was with the purpose of extending a benefit subject to certain conditions. It was specifically stated that in the Government order that the supernumerary appointees will have to remain in ## W.P.(C) No.4002 of 2021 -4- their posts until retirement, which indicates that the appointments made after a due selection process. The Division Bench held that the imposition of such condition does not violate Article 14 of the Constitution of India and does not amount to discrimination. Based on the said findings, Ext.P3 judgment was set aside. In view of Ext.P6 judgment, the petitioner submitted Ext.P7 representation, requesting the PSC to advise her for appointment from Ext.P1 rank list. The representation having failed to evoke any positive response, this writ petition is filed seeking a writ of mandamus, directing the PSC to advise the petitioner to the vacancy reported by the third respondent. 2. Adv.P.Ramakrishnan, learned Counsel for the petitioner, contended that the benefits granted to the supernumerary appointees under Ext.P3 judgment having been set at naught by the Division Bench, there is no impediment in W.P.(C) No.4002 of 2021 -5- advising the petitioner to the vacancy of LD Clerk reported by the third respondent. Attention is drawn to Ext.P10 interim order in W.P.(C) No.31460 of 2018 filed by two other candidates included in Ext.P1 rank list. As per Ext.P10 interim order dated 26.09.2018, this Court directed the third respondent to report 36 more vacancies to the PSC so as to reach before 4.00 p.m. on 26.09.2018, with a rider that the PSC need not advise candidates except under further orders from the court. Accordingly, the third respondent reported 36 vacancies (35 fresh vacancies and 01 NJD) vacancies on 28.09.2018. Thereafter, in the light of the submission that out of the 35 fresh vacancies, 3 vacancies were available for filling up, a further order was passed, directing the PSC to see that advice is made from Ext.P1 rank list against the 3 remaining vacancies. Based on the direction, advices were issued by the PSC. Thereupon, ## W.P.(C) No.4002 of 2021 -6- WP(C)No.31460 of 2018 was closed directing the respondents to make appointments based on the advice. Consequently, three candidates appointed by the third respondent, vide its order dated 29.07.2019. According to the learned Counsel, the third respondent is bent upon regularizing the service of the supernumerary appointees, as revealed from Ext.P11 counter affidavit filed in W.P.(C) No.31460 of 2018. It is contended that the supernumerary appointees being outside regular service of the third respondent, the remaining 32 vacancies are also substantive and the PSC is bound to advise candidates to those vacancies. 3. Learned Standing Counsel for the PSC submitted that as the 35 vacancies were reported provisionally, no advice could be issued against the same. As per sub-rules (a) and (b) of Rule 5 of KS&SSR, only substantive vacancies in the permanent cadre can be filled up by persons ## W.P.(C) No.4002 of 2021 -7- recruited directly. Advice in the case of 3 candidates were issued pursuant to Ext.P10 order and to the remaining 32 vacancies advice could be issued if the Board reported them as substantive vacancies, that too within the validity period of the ranked list. 4. Learned Standing Counsel for the third respondent pointed out that Ext.P1 rank list was in force only up to 28.09.2018 and thereafter, a new rank list in category No.400/217 of Junior Assistant/Assistant Grade II/LDC in various Government undertakings/Company/Board/ Corporations etc has come into force with effect from 31.12.2019. It is submitted that in Ext.P3 judgment, this Court had declared the supernumerary appointees to be entitled for all benefits including declaration of probation, promotion and seniority. Immediately thereafter, the Government filed W.A.No.1394 of 2019 and the Labour Department directed the third respondent ## W.P.(C) No.4002 of 2021 -8- not to regularize the service of persons appointed in supernumerary posts or steps for declaration of probation, promotion, seniority etc. Even though the writ appeal stands allowed by the Division Bench vide Ext.P6 judgment, yet another writ petition (WPC No.6121 of 2020 filed by the supernumerary staff is still pending consideration. Therefore, without disposing the case, the third respondent Board cannot extend its consent to accommodate 32 more clerks. It is contended that the third respondent is not receiving any financial aid from the Government and establishment expense of its staff is met by utilising the welfare levy collected from the employers. As the third respondent is paying salary to the supernumerary staff, the appointment of another 32 clerks will result in additional financial burden, which the Board may not be able to handle in the long run. Learned Counsel placed the reliance on the Full Bench W.P.(C) No.4002 of 2021 -9- decision in _**Kerala Public Service Commission and**_ _**another v. Sheejamol M.C and others**_ **[** _**2020 (5) KHC**_ _**555]**_ to contend that the question as to whether a particular vacancy or vacancies should be filled up is a matter to be considered by an appointing authority and if for any reasonable or bona fide reason, including financial situation, the appointing authority decides that the vacancies need not be filled up, it would not be proper for the court to thrust candidates upon the unwilling employer, merely because they are included in a ranked list. 5. Herein, 36 vacancies were reported while the rank list was in force. As held in _**Annie v.**_ ## _**Commissioner, Chalakkudy Municipality [1984 KLT**_ _**170],**_ a realistic understanding of Rule 14 of the Kerala Public Service Commission Rules of Procedure, would lead to the inference that the PSC is not only entitled, but also has a duty to ## W.P.(C) No.4002 of 2021 -10- advise candidates even after the lapse of the ranked list, provided the vacancies are reported during the period when the ranked list was alive. 6. The prime reason for not reporting the 35 vacancies provisionally was the pending claim of the supernumerary staff for regularisation. That claim stands rejected by Ext.P6 judgment and the indisputable position that supernumerary posts are ex-cadre, there is no justification in treating the vacancies are provisional. The pendency of W.P.(C) No.6121 of 2020 cannot also be a reason, since that writ petition stands dismissed as infructuous. 7. The other reason projected is that if appointments are made to the reported vacancies that will have an adverse impact on the financial position of the third respondent. To buttress this contention, reliance was placed on the Full Bench decision in _**Sheejamol M.C,**_ W.P.(C) No.4002 of 2021 -11- _(supra)._ Therein, among others, the Full Bench was called upon to answer the following question also; _“8. ...(iii) Can this Court be approached to compel an appointing authority to fill up vacancies from a ranked list prepared by the Public Service Commission even if the appointing authority / employer does not intend to fill up that particular vacancy / vacancies for genuine and bona fide reasons? [This issue arises on account of the fact that in the facts of the cases placed before us, the appointing authority (the Ernakulam District co- operative Bank Limited) took up the specific contention that they did not intend to fill up the vacancy in question on account of certain orders issued by the regulatory authorities under the Cooperative Societies Act downgrading their status as a result of which there was a reduction in the number of posts to be filled up.”_ After elaborate consideration, the question was ## answered as under; _“(II) An appointing authority may, for good and sufficient reasons, take a decision not to fill up existing vacancies and merely on account of the fact that there is a ranked list in_ W.P.(C) No.4002 of 2021 -12- _force, this Court will not, in exercise of its jurisdiction under Art.226 of the Constitution of India, compel the appointing authority to fill up those vacancies. Circumstances such as financial difficulties, or as in the facts of these cases, orders of statutory authorities resulting in reduction of the number of vacancies or abolition of posts etc would be good and sufficient reason for the appointing authority to take a decision not to fill up the vacancies.”_ 8. No doubt, the appointing authority may, for good and sufficient reasons take a decision not to fill up existing vacancies. Here, the question is whether a probable future impact on the financial position of the employer is a valid reason to deny appointment to a rank listed candidate. While answering the question, it has to be noted that even the probable impact is attributable to the continuance of persons appointed on supernumerary basis at the Government's instance. Yet another relevant factor is that, 3 candidates from Ext.P1 rank ## W.P.(C) No.4002 of 2021 ## -13- list have already been advised and appointed based on the direction of this Court. Pertinently, the Board of the third respondent has so far not taken a decision not to fill up the 32 existing vacancies. A conspectus of the above facts leads to the irresistible conclusion that a probable financial impact cannot be put forth as a reason for denying appointment to the petitioner. **==> picture [381 x 12] intentionally omitted <==** as under; **==> picture [381 x 11] intentionally omitted <==** petitioner's name for appointment to the third respondent by treating one among the 32 vacancies reported by the third respondent as substantial. **==> picture [381 x 12] intentionally omitted <==** expeditiously as possible and at any rate within two weeks of receipt of a copy of this judgment. **==> picture [381 x 12] intentionally omitted <==** appointment order to the petitioner within two W.P.(C) No.4002 of 2021 -14- weeks of receipt of the advice. Needless to say, the above directions are subject to the petitioner being eligible for advice and appointment based on her rank in Ext.P1 list. Sd/- **V.G.ARUN JUDGE** Scl/ -15- ## W.P.(C) No.4002 of 2021 ## **APPENDIX OF WP(C) 4002/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE RANK LIST DATED 29.9.2015. EXHIBIT P2 TRUE PRINT OUT OF THE WEBSITE PAGE OF THE 1ST RESPONDENT SHOWING THE DETAILS OF THE VACANCY REPORTED BY THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WP(C) NO.36898/2018 DATED 11/3/2019 EXHIBIT P4 TRUE COPY OF THE LETTER DATED 5/9/2019 ISSUED BY THE 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF THE RTI REPLY DATED 12/12/2019 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN W.A.1394/2019 DATED 1/2/2021 EXHIBIT P7 TRUE COPY OF THE REPRESENTATIONS DATED 2.2.2021 PREFERRED BEFORE 1ST RESPONDENT. EXHIBIT P8 TRUE COPY OF THE REPRESENTATIONS DATED 2.2.2021 PREFERRED BEFORE THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE REPRESENTATIONS DATED 2.2.2021 PREFERRED BEFORE 3RD RESPONDENT. Exhibit P10 TRUE COPY OF THE INTERIM ORDER DATED 26/09/2018 IN WPC.NO.31460/2018. Exhibit P11 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 03/10/2018 IN WPC.NO.31460/2018 FILED BY THE 3RD RESPONDENT. Exhibit P12 TRUE COPY OF THE ORDER DATED 29/03/2019 IN WPC.NO.31460/2018.