C.P. Chandrika v. State of Kerala and Kerala Public Service Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 WP(C).No. 31629 of 2006(M) -------------------------------------- PETITIONER(S): --------------- C.P.CHANDRIKA, W/O.V.N.RAMAN, AGED 40 YEARS, RESIDING AT VADAKATH HOUSE, PATHRAMANGALAM, VELLARAKAD P.O., TRISSUR. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. BY G.P.SMT.M.R.SREELATHA FOR R1 ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2010, ALONG WITH WPC NO. 29631 OF 2006,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. M. JOSEPH, J.** **------------------------------------------------W.P.C. NO. 31629/06 M** **-----------------------------------------------Dated this the 31st January, 2007** ## **ORDER** Admit. Issue Notice. The interim relief prayed for in this Writ Petition is to stay further proceedings pursuant to Ext.P4. This is opposed by learned standing counsel appearing on behalf of the respondent, The Public Service Commission. Ext. P4 is a Notification issued calling for applications for appointment to the post of HSA (English). Case of petitioner is that even though she was an applicant for the post of HSA (English) in Thrissur District pursuant to an earlier Notification, as she did not secure the cut off marks of 43, she was not included. She filed a Writ Petition and it came to be disposed of by Ext.P2 Judgment wherein this Court found that cut off marks was fixed differently in different Districts. In Thrissur District, it was 43. It was lower in Ernakulam and Kottayam Districts. The Court came to the _**WP(C) 31629/06**_ _**2**_ conclusion that three to five times of the number of vacancies which may occur during the currency of the list as mentioned in v. the decision of the Apex Court in State of Punjab and Others Manjit Singh and Others (AIR 2003 SC 4580) was not considered while shortlisting the candidates. The Court, therefore, directed the Public Service Commission to consider anticipated vacancy also and then refix the number of persons to be called for interview on the basis of the directions in Manjit ' Singh s case. The Commission was directed to assess the vacancies that may arise during the currency of the list in a reasonable manner within a month from the date of the Judgment (13.7.2006) and shortlist the candidates at least three times the number of vacancies in the order of merit without fixing cut off marks and complete the formalities and publish additional list within two months from the date of the Judgment and advise candidates for the vacancies reported during the currency of the list. It was made clear that even if they are shortlisted, they will not be entitled to get any seniority over the _**WP(C) 31629/06**_ _**3**_ persons already listed. 2. It is the case of the petitioner that the action of the Public Service Commission in publishing Ext.P4 and proceeding with a new selection pursuant to Ext.P4 is illegal and arbitrary. It is also submitted that the petitioner is age-barred and she cannot apply pursuant to Ext.P4. It is pointed out that the Commission should not be permitted to proceed with the selection. 3. An Affidavit is filed by the Commission defending the action. According to standing counsel for the Commission, there is no merit in the interim prayer. It is submitted that reliance placed on Ext.P2 Judgment is without basis. The Commission has carried the matter before the Apex Court and leave has been granted by the Apex Court, and that therefore, Ext.P2 Judgment has not become final. He would submit that it is not open to petitioner to approach this Court and if at all, it may be open to her to go to the Apex Court with her present complaint. He would further submit that the action of the _**WP(C) 31629/06**_ _**4**_ Commission is authorised under law. He submitted that in the decision in Pylo v. State of Kerala (1985 KLT 830), a learned Single Judge while upholding Rule 13 of the Public Service Commission Rules of Procedure, took note of the fact that the persons who were included in a list may become over-aged for any subsequent selection, deserves some consideration and granted relief. The Court was dealing with the petitioner therein who was included in the rank list and even before the expiry of the minimum period of validity of the said list, the Commission had issued fresh notification. The learned Single Judge took the view that except in exceptional circumstances and for compelling reasons, candidates once selected are not subject to a short-shrift. This, however, learned standing counsel submits, came to be over-turned by the Division Bench in the decision in Public Service Commission v. Pylo (1986 KLT 46). He would submit that public law principles will apply in the matter and it is not a lis between the petitioner and the Commission as such. There are unemployed like the petitioner _**WP(C) 31629/06**_ _**5**_ and if the Commission decides to proceed within the limits of its authority, which limits are to be marked by the Rules applicable to it, it is not for this Court to veto the same. There cannot be no equity in these matters, it is submitted. He would submit further that even if the list had been prepared pursuant to Ext.P2 Judgment, significance of the crucial words “currency of the list” is not to be missed by this Court. In other words, it is submitted that even if Ext.P2 were complied with and a list is brought as directed, it would very much open to the Commission to exercise its undoubted powers to bring into effect a new rank list. He would further submit that the only restraint is that a rank list should be issued in force for a period of one year. Further, even if a rank list is there, it is open to the Commission to prepare a new list, but the only real limit is that a new list shall not be brought into force before the expiry of one year from the date of the rank list, he submits. He would submit that in fact there are 639 candidates. This Court should not overlook, it is submitted, the rights of other candidates. It is also submitted _**WP(C) 31629/06 6**_ that they have a right pursuant to the application made consequent upon Ext.P4 and their absence before this Court, when they would have much to contend, is fatal to the destiny of this petition. He would submit that it is settled law that inclusion of a candidate in a list does not confer a right and he invited my attention to Rule 3(b) of the KS & SSR. Right to employment is recognised as right to property and, therefore, there is a concomitant duty to share it among the unemployed. He would also submit that there is no case in the Writ Petition as to what would be the possible position of the petitioner, if the Commission had purported to comply with Ext.P2 Judgment. 4. It is true that Ext.P2 Judgment has not become final. It is equally true that Ext.P2 Judgment has not been stayed. It cannot be said that Ext.P2 Judgment is without force. It is not as if the petition is to implement Ext.P2 Judgment, in a positive sense by complying with the said Judgment. Here, the question is the justification for acting in a manner which patently tends, prima facie, to defeat the said Judgment. I would think that it _**WP(C) 31629/06**_ _**7**_ would not be fair on the part of the Commission to proceed with a selection based on Ext.P4 in regard to the Thrissur District in the light of Ext.P2 Judgment. Even at this stage, the Commission takes the stand that persons who have applied pursuant to Ext.P4, have a right. If that be so, certainly any further progress made in pursuance of Ext.P4 would confer even greater rights. I would think that it would be fair that till a decision is taken in the matter, there should be an interim order staying further proceedings pursuant to Ext.P4. It is not to be overlooked that the Commission does have an authority to bring out a new list and the only constraint under the Rule is that a rank list should be permitted to remain for a period of one year. I am of the view, prima facie, that the facts in Pylo v. State of Kerala (1985 KLT 830) and the facts in this case are different. That was a case where the Court did not approve of the bringing into force the new list on the basis that persons already selected in the earlier list would be age-barred. But, here, I would think that the question is slightly different and the question has to be _**WP(C) 31629/06**_ _**8**_ answered in the light of the direction of the Division Bench in Ext.P2 to act in a particular manner. No doubt, it has not become final. But, at the same time, as I have already noted, the Judgment is not stayed by the Apex Court, either. Ext.P4 cannot stand scrutiny in the light of Ext.P2 Judgment. The Public Service Commission while it undoubtedly must be allowed considerable free play in its joints, it is as much bound not to act against the Judgments as any other party is. It is to be noted that going by Ext.P2 Judgment, the Court has not only directed preparation of an additional list, but has categorically directed that the candidates are to be advised for the vacancies reported during the currency of the said list. 5. As regards the contention that even if Ext.P2 Judgment were complied with, the words “currency of the list” should govern, I take the prima facie view that, even without bringing such a list, Ext.P4 may not be justifiable. Allowing the Commission to proceed, when it takes the stand even now that applicants under Ext.P4 are to be heard, may result in all parties _**WP(C) 31629/06 9**_ being faced with avoidable difficulties and unfairness if Ext.P4 is not stayed. In such circumstances, there will be an interim order staying all further proceedings pursuant to Ext.P4 in so far as it relates to Thrissur District. H/O. to both sides. **K. M. JOSEPH, JUDGE** kbk.