Latha V. v. Bhargavi K and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 WA.No. 1398 of 2008() --------------------AGAINST THE JUDGEMENT/ORDER IN WPC.7172/2008 Dated 12/03/2008 .................... APPELLANT(S): -------------- LATHA V, W/O P.K.KARUNAKARAN, PANAYAMTHATTA HOUSE, KOTTAMALA P.O., NILESWAR, KASARGOD DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. BHARGAVI K, AGED 31, YEARS, W/O ASHOKAN, KOTTUMOOLA, KAYYUR VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. 2. SAVITHRI V., AGED 39 YEARS, W/O THAMBAN, PILANTHOI, CHEMENI VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. 3. SUSHEELA MOTTAMMAL, AGED 35 YEARS, D/O GOVINDAN, PERUMTHADANM CHERUPUZHA VILLAGE, THALIPARAMBA TALUK, KANNUR DISTRICT. 4. RATHI KARIMBIL, AGED 37 YEARS, W/O VENU, MADHURAKKAD, PULLUR VILLAGE, HOSDURG TALUK,KASARGOD DISTRICT. 5. REETHA PALANGATTUVALAPPIL, AGED 35 YEARS, W/O GOPI, EZHOM, EZHOM VILLAGE, KANNUR DISTRICT. 6. DISTRICT MEDICAL OFFICER (HEALTH), KASARGOD AT KANHANGAD, KASARGOD DISTRICT. 7. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM, 8. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM. 9. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KASARGOD. 10. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R9,10 GOVERNMENT PLEADER SMT.R.BINDU. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------W.A. No.1398 of 2008 ---------------------------------------------Dated 18[th] January, 2010.** ## **J U D G M E N T** ## _**Balakrishnan Nair, J.**_ The appellant was a candidate included in the rank list published by the Kerala Public Service Commission ('PSC', for short), for appointment to the post of Junior Public Health Nurse, in Kasaragode District. Ext.P1 was the rank list published on 31.3.2005, which expired on 30.3.2008. On the eve of expiry of the rank list, the appellant and others approached this Court, pointing out that there were several vacancies in the post of Junior Public Health Nurse, in Kasaragod District, and the appointing authority was not reporting those vacancies to the PSC. A statement was filed by the learned Government Pleader, in which it was stated that, no vacancies were available for reporting, and whatever vacancies available, were already reported to the PSC. Taking note of that statement, the writ petition was dismissed. Hence, this Writ Appeal. 2. The appellant moved the appointing authority's WA NO.1398/08 2 office, under the Right to Information Act, and obtained Annexure-I reply to her query. The said document would show that 8 vacancies were reported by the office of the District Medical Officer (Health), to the District Office of the PSC, on 19.3.2008. Thereafter, two vacancies were reported on 26.3.2008. 3. Relying on Annexure-I, the Division Bench disposed of the Writ Appeal, directing the PSC to advise two candidates to those two vacancies, stated to have been reported on 26.3.2008. Later, the PSC noticed that, as per the records maintained by it, no such requisition concerning the two vacancies was received in its office. Therefore, a Review Petition was filed before this Court, by the PSC. After hearing both sides, the Review Petition was allowed and the Writ Appeal was posted for re-hearing. 4. We heard the learned counsel on both sides. The learned counsel for the appellant submitted that Annexure I proves the existence of two vacancies, and its reporting to the PSC, on 26.3.2008. If the Requisition Register of the PSC does not show that such a requisition was received before the expiry of WA NO.1398/08 3 the rank list, it can be a mistake in the office of the PSC, it is submitted. Therefore, a direction may be issued to the Commission, to advise two candidates to the said two vacancies, from Ext.P1 rank list, it is submitted. 5. The learned Standing Counsel appearing for the PSC, on the other hand, submitted that the claim of the District Medical Officer(Health), regarding the reporting of two vacancies on 26.3.2008, cannot be correct. The PSC received Ext.R9(a) communication dated 25.4.2008, from the office of the District Medical Officer, on 26.4.2008. In the said communication, a letter dated 26.3.2008, stated to have been sent from the District Medical Office, reporting two vacancies, is mentioned. The District Medical Officer also requested the PSC, for advising two candidates to those vacancies. The PSC, thereupon, replied by Ext.R1(b) letter dated 7.5.2008, stating that the PSC has not received the requisition dated 26.3.2008, and requested the District Medical Officer to report the vacancies, in the prescribed proforma. Subsequently, two vacancies were reported, as per Ext.R9(c) dated 17.5.2008. The PSC also produced its Requisition WA NO.1398/08 4 Register, Ext.R9(d), relating to the months of March, April and May, 2008. The same would show that no requisition dated 26.3.2008, was received by the PSC, either before 30.3.2008, or thereafter. Unless the vacancies are reported, and the requisition received by the PSC, before the expiry of the rank list, no advice can be made, in view of the Full Bench decision of this Court in **Vimala Kumari v. State** [1994(2) KLT 47(F.B.)]. 6. The learned counsel for the appellant submitted that Ext.R9(a) would also, in some measure, support his case, as the said letter of the District Medical Officer refers to the letter dated 26.3.2008. 7. The learned Government Pleader produced before us, the Despatch Register of the District Medical Office, Kasaragod, for the month of March, 2008. The same would show that a letter has been sent on 26.3.2008 by the said office to the District office of the PSC. But, the materials produced by the Public Service Commission, including the Requisition Register for the months of March, April and May would show that no such letter was received by the PSC. WA NO.1398/08 5 8. Going by the Full Bench decision, which was holding the field for the last 16 years, even if the vacancies arose before the expiry of the rank list, unless the requisition concerning those vacancies reached the PSC office before the expiry of the rank list, advices cannot be made from that list. To the vacancies reported after the expiry of the rank list, the Commission will advise candidates only from the new rank list, that will be published. So, in view of the disputed questions involved in this case, this Court cannot grant the direction sought against the PSC. Therefore, we have to affirm the judgment of the learned Single Judge on that point, and we do so. 9. But, having regard to the dispute involved in this case, we direct the 8[th] respondent-the State to cause an enquiry into the dispute, whether the District Medical Officer, Kasaragode has sent requisition on 26.3.2008, as per File No.A3-4969/05, and if so, why it did not reach the PSC office, before 30.3.2008. If, without sending a letter, the D.M.O.'s office has made a false entry in the Despatch Register to help the appellant, the Government shall take appropriate action in accordance with law, WA NO.1398/08 6 against the officers concerned. If it is found that the requisition was actually sent on 26.3.2008, the Government can consider whether any relief could be granted to the appellant, under Rule 39 of the Kerala State and Subordinate Service Rules. The Writ Appeal is disposed of as above. **K.BALAKRISHNAN NAIR, JUDGE.** **C.T.RAVIKUMAR, JUDGE.** ## **tgs** ## **K.BALAKRISHNAN NAIR &** **C.T.RAVIKUMAR, JJ.** **---------------------------------------------W.A. No.1398 of 2008 ----------------------------------------------** **J U D G M E N T** **Dated 18[th] January, 2010.**