Kerala Public Service Commission and The Secretary, Kerala Public Service Commission v Abdul Haris B.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023/21ST POUSHA, 1944** **O.P(KAT).NO.415 OF 2022** **AGAINST THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL IN O.A.(EKM) NO.284/2022 DATED 20/10/2022** ## **PETITIONERS/RESPONDENTS:** **1 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, KPSC OFFICE, THULASI HILL, PATTOM, THIRUVANANTHAPURAM, PIN-695004, KERALA.** **2 THE SECRETARY KERALA PUBLIC SERVICE COMMISSION, KPSC OFFICE, THULASI HILL, PATTOM, THIRUVANANTHAPURAM, PIN-695004, KERALA.** **BY SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENT/APPLICANT:** **ABDUL HARIS.B AGED 32 YEARS, S/O MOHAMMED.A., BAYADI HOUSE, KUDAL MERKALA (POST), MANAGALPADY (VIA), KASARGOD- 671224, PH: 8606704438.** **BY ADV.SMT.A.ARUNA** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(KAT).NO.415 OF 2022 :: 2 ::** ## **J U D G M E N T** ## **A.K. Jayasankaran Nambiar, J.** The Kerala Public Service Commission and its Secretary are the petitioners before us impugning the order dated 20.10.2022 of the Kerala Administrative Tribunal in O.A.No.1284 of 2022. The brief facts necessary for disposal of the O.P.(KAT) are as follows: The applicant before the Tribunal is the person who had responded to the Notification dated 12.4.2016 published by the Kerala Public Service Commission [PSC] for the post of Assistant (Kannada Knowing) in the PSC. Pursuant to the selection process, he was ranked first in the supplementary list prepared for candidates in the Muslim community. The rank list for the post was brought into force on 10.3.2020 and is valid till 9.3.2023. During the currency of the rank list, two vacancies were identified in the post of Assistant (Kannada Knowing) and the said two vacancies were available for advice. The first vacancy was reserved for appointment by a differently abled candidate of the low vision category. Inasmuch as there was no **O.P.(KAT).NO.415 OF 2022 :: 3 ::** candidate of the differently abled/low vision category available in the rank list, the said vacancy was set apart to be filled from the next rank list published for the post in accordance with Section 34(2) of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 2016 and Circular No.3/2013 issued by the PSC in consonance with the aforesaid Act. The second vacancy was filled by advising Smt.Remya K.R., and she joined duty in the Office of the PSC on 12.8.2020. The said candidate however availed Leave Without Allowance [LWA] from 1.3.2022 to 30.4.2022 and from 1.5.2022 to 31.7.2022 and yet again from 1.8.2022 to 30.9.2022. She then applied for maternity leave from 1.10.2022 to 29.3.2023, and the said maternity leave was also processed by the PSC. The case of the applicant before the Tribunal was essentially that inasmuch as the leave vacancy that arose consequent to the leave availed by Smt.Remya K.R. enured for more than three months, the PSC, as an employer, was required to report the said leave vacancy to the PSC, as the recruitment agency, in accordance with the provisions of Note (1) to Rule 5 of Part II of the Kerala State and Subordinate Services Rules [KS & SSR] read with the Government orders issued from time to time. It was, in particular, pointed out that the applicant, being a member of the Muslim community and ranked first in the supplementary list **O.P.(KAT).NO.415 OF 2022 :: 4 ::** prepared by the PSC, he would not get another chance to obtain employment if his case was not considered for appointment to the leave vacancy in question. 2. In the reply statement filed on behalf of the PSC before the Tribunal, the stand taken was that the PSC had taken a conscious decision as an employer not to fill up the leave vacancy in question since the total sanctioned strength of the post in the PSC was only two, and if one vacancy was reported owing to the fact that the Officer who joined duty had availed leave for more than six months, it would lead to the appointment of another candidate from the rank list and since there was only two sanctioned posts of Assistant (Kannada Knowing), the applicant, if appointed, would have to vacate the post on Smt.Remya K.R. rejoining duty. This would, in turn, create a situation where the applicant would then have to be treated as 'thrown out' for want of vacancies in the post, and there would be no fresh vacancies in the post till 2044 when Smt.Remya K.R. would retire from service in the usual course. It was further pointed out that, as per the existing staff pattern, the promotion of Smt.Remya K.R. in service would occur only after 15 years, and hence, there was no realistic chance for the occurrence of another vacancy in the near future. It was further **O.P.(KAT).NO.415 OF 2022 :: 5 ::** pointed out that the applicant had a right to be advised only against vacancies that were reported to the PSC during the currency of the rank list in which he featured, and inasmuch as there was no such vacancy reported to the PSC as a recruitment agency, the applicant could not claim any right for filling up the alleged vacancy to the post. 3. The Tribunal that considered the matter, found that Smt.Remya had availed LWA for the period from 1.3.2022 to 30.9.2022 and thereafter she had submitted an application for maternity leave from 1.10.2022 to 29.3.2023 in continuation of the LWA and that the same was under process in the Office of the PSC. The Tribunal was therefore of the view that this was a case which attracted the provision of Note (2) to Rule 5 of Part II of the KS & SSR, and since the total leave period availed by Remya K.R. was well beyond six months, the PSC had necessarily to report the leave vacancy in the post of Assistant (Kannada Knowing) so that the applicant could be advised against the said vacancy in accordance with the Rules of Rotation/Reservation. 4. We have heard Sri. P.C.Sasidharan, the learned Standing counsel for the PSC and Smt. A.Aruna, the learned counsel appearing **O.P.(KAT).NO.415 OF 2022 :: 6 ::** on behalf of the respondent. 5. The contention of Sri. P.C.Sasidharan, the learned counsel for the petitioner PSC is essentially that the decision as to whether or not a vacancy in the Organization should be filled through direct recruitment is one that has to be taken by the employer, which, in the instant case, is the PSC itself. It is his contention that inasmuch as the PSC had taken a conscious decision not to fill up the leave vacancy that arose in the post of Assistant (Kannada Knowing) primarily on account of the fact that the vacancy in question was a leave vacancy and also because filling such a vacancy would result in creation of preferential rights for future appointments to the post in question immediately on the re-joining of the regular incumbent, which preferential right could not be exercised by the applicant till 2044, i.e., 22 years later, the Tribunal could not have compelled the PSC to fill up the post by advising the applicant to the said leave vacancy that arose in the post. It is also pointed out that Note (2) to Rule 5 had no application to the instant case since the said Rule applied only in situations where a vacancy had to be filled by considering the claims of direct recruits and by-transfer appointees which was not the case of the applicant before the Tribunal. With specific reference to the Note **O.P.(KAT).NO.415 OF 2022 :: 7 ::** below the said Rule, he points out that the mandate in the Note to treat temporary vacancies of more than six months duration as substantive vacancies in a cadre applied only in the situation envisaged under Rule 5 and not otherwise. It is his contention therefore that the reliance by the Tribunal on the Note to Rule 5 was misplaced, and in the absence of the said Rule, there was no legal basis or justification for directing the advice of the applicant to the leave vacancy in question. He also relies on the judgment of the Full Bench of this Court in **Kerala Public Service Commission v. Sheejamol - [2020 (5) KLT 718]** to contend that an Appointing Authority cannot be compelled to fill up vacancies from a rank list prepared by the PSC even if the Appointing Authority does not intend to fill up the vacancy for genuine and _bona fide_ reasons. Reliance is also placed on the decisions of the Supreme Court in SLP (C) Nos.24214 - 24221 of 2019 to point out that it is only against vacancies that are reported to the PSC that a candidate can have a semblance of a right, and as far as vacancies that are not reported to the PSC are concerned, the candidates cannot claim a right _per se_ . 6. Per contra, Smt. A.Aruna, the learned counsel for the respondent/applicant would reiterate her contention before the **O.P.(KAT).NO.415 OF 2022 :: 8 ::** Tribunal with regard to the applicability of Note (2) to Rule 5 of Part II KS & SSR, and in addition rely on the provisions of the Government Order dated 6.9.1991 which issues instructions with regard to the manner in which the Heads of Department under the State Government had to report vacancies to the various posts, to the PSC. She contends that the PSC, as an employer, was obliged to report the leave vacancy for filling up from among the candidates in the rank list prepared by the PSC, as the recruitment agency, and the directions issued by the Tribunal cannot be found fault with. 7. On a consideration of the rival submissions and on a perusal of the pleadings on record, we find ourselves unable to sustain the impugned order of the Tribunal. It is evident from a reading of the impugned order that the Tribunal placed reliance on the provisions of Note (2) of Rule 5 of Part II KS & SSR to treat the leave vacancy as a vacancy that was required to be reported by the PSC, as an employer, to the PSC, as the recruitment agency, for the purposes of filling up from among candidates empaneled in the rank list. As rightly pointed out by the learned counsel for the petitioner herein, Note (2) to Rule 5 applies only in those situations which are contemplated in Rule 5 where the normal method of recruitment to any service, class or **O.P.(KAT).NO.415 OF 2022 :: 9 ::** category is neither solely by direct recruitment nor solely by transfer, but is both by direct recruitment and by transfer. Since, admittedly the said situation does not arise in the instant case, the method of recruitment being solely by direct recruitment, the Note to the said Rule can have no application on the facts of the instant case. That apart, we also find that it is well settled that a candidate included in a rank list prepared by the PSC can have a claim for appointment only to those vacancies that are reported to the PSC. If there are any vacancies that are not reported to the PSC pursuant to a conscious decision taken by the employer to not do so, then the PSC, as a recruitment agency, has necessarily to defer to the decision of the employer. In the instant case, we find that the PSC, in its capacity as an employer, had taken a conscious decision not to fill up the leave vacancy that arose in the post of Assistant (Kannada Knowing) since they had already filled up the post on regular basis and the leave vacancy was to enure only for a short period after which the regular incumbent would rejoin service. The decision of the PSC, as an employer, was not to fill up the leave vacancy of short duration and the said decision has to be respected so long as we find that it is not vitiated by _mala fide_ or taken on irrelevant instructions. We therefore allow the O.P.(KAT), by setting aside the impugned order of the **O.P.(KAT).NO.415 OF 2022 :: 10 ::** Tribunal, and dismissing the O.A. as devoid of merit. We might observe however that if the PSC decides to engage/employ any person on daily wage/contract basis to the leave vacancy in question they shall consider the candidature of the respondent herein for such engagement/employment before considering any other person. **Sd/A.K.JAYASANKARAN NAMBIAR** **JUDGE** **Sd/MOHAMMED NIAS C.P. JUDGE** **prp/12/1/23** **O.P.(KAT).NO.415 OF 2022 :: 11 ::** ## **APPENDIX OF O.P(KAT).NO.415/2022** ## **PETITIONERS ANNEXURES:** **Annexure A1 ANNEXURE A1:- TRUE COPY OF THE NOTIFICATION FOR CATEGORY NO. 46/2016 ISSUED BY THE 2ND RESPONDENT PUBLISHED IN THE GAZETTE DATED 12.04.2016** - **Annexure A2 ANNEXURE A2:- TRUE COPY OF THE RANKED LIST NO. 121/020/ER/VIII(3) FOR THE CATEGORY NO. 46/2016 PUBLISEHD WITH EFFECT FROM 10.03.2020 BY THE 1ST RESPONDENT** - **Annexure A3 ANNEXURE A3:- TRUE COPY OF THE APPOINTMENT CHART NO. RIA(1) 11343/18/GW ISSUED BY THE 2ND RESPONDENT** - **Annexure A4 ANNEXURE A4:- TRUE COPY OF THE CIRCULAR NO. 1695/ST4/78/GAD/1978** - **Annexure A5 ANNEXURE A5:- TRUE COPY OF THE CIRCULAR NO. 141096/ST/86/GAD DATED 13.11.1986** - **Annexure A6 ANNEXURE A6:- TRUE COPY OF HTE CIRCULAR NO. PRC3/174/2021/P&ARD DATED 05.10.2021** - **Annexure A7 ANNEXURE A7:TRUE COPY OF THE REPRESENTATION DATED 04.08.2022 FILED BY THE APPLICANT WITH THE 2ND RESPONDENT** **Exhibit P1 EXHIBIT P1:- THE TRUE COPY OF THE ORIGINAL APPLICATION IN O.A(EKM) NO.1284/2022 FILED BEFORE THE TRIBUNAL** **O.P.(KAT).NO.415 OF 2022 :: 12 ::** **Exhibit P2** **EXHIBIT P2:- THE TRUE COPY OF THE REPLY STATEMENT DATED 20/10/2022 FILED BY THE COMMISSION IN OA EKM 1284/2022** **Exhibit P3** **EXHIBIT P3:- THE TRUE COPY OF THE ORDER DATED 20/10/2022 IN O.A(EKM) NO.1284/2022** **RESPONDENT'S ANNEXURES: NIL.** **//TRUE COPY//**