OP(KAT) No.11 of 2021

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942** ## **OP(KAT).No.11 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OA (EKM) 2937/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/2ND RESPONDENT:** **KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695004, KERALA.** **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENTS/APPLICANT & RESPONDENT NOS.1, 3 & 4:** - **1 SWAROOP V.R. AGED 42 YEARS, S/O. KRISHNAN V.R., SANTHI NILAYAM, NUTSTREET P.O., VATAKARA-673104, KOZHIKODE, KERALA, MOBILE -9847402034** - **2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001, KERALA.** - **3 THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM-695001, KERALA.** - **4 THE SECRETARY TO GOVERNMENT, SOCIAL WELFARE DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **R1 BY ADV. SRI.M.SASINDRAN** **R2-R4 SRI.B.VINOD, SR.GOVT.PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No.11 OF 2021 2** ## **ALEXANDER THOMAS & T.R.RAVI, JJ.** ------------------------------------------------ **O.P.(KAT) No. 11 of 2021** _[arising out of order dated 24/08/2020 in O.A.(EKM)Nos.2937/2017 of KAT, Ekm Bench]_ ------------------------------------------------ Dated this the 12[th] day of January, 2021 ## **J U D G M E N T** ## **Alexander Thomas,J.** The aforecaptioned original petition has been filed under Articles 226 and 227 of the Constitution of India with the following prayers: _(i) To set aside Exhibit P3 order of the Hon'ble Tribunal dated 24.08.2020 in O.A.(EKM) No.2937/2017 and thereby dismiss the Interim Application._ _And_ _(ii) To issue such other writ, order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case._ 2. Heard Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission appearing for the petitioner in the O.P./R2 in the O.A before the Tribunal, Sri.M.Sasindran, learned counsel appearing for R1 in the O.P/original applicant before the Tribunal and Sri.B.Vinod, learned Senior Government Pleader appearing for official respondents 2 to 4 in the O.P. 3. It is the case of the original applicant before the ## **OP(KAT).No.11 OF 2021 3** Tribunal that he has been duly included in the rank list for the post of Lecturer in Food Science, Collegiate Education Department, Government of Kerala, published in the Gazette dated 15.12.2012 for category No.621/2012 and that the rank list has come into force on 30.08.2017. From the pleadings and materials of both sides it appears that the original applicant was included in Annexure-A2 rank list as Rank No.1 therein. Further it appears that one vacancy in the post of Lecturer in Food Science was reported by the appointing authority to the petitioner Kerala Public Service Commission. Further, it is the case of the Public Service Commission that the turn to be filled up for advising the candidate utilizing the said vacancy was set apart for DA candidate (Differently Abled Candidate) from the abovesaid rank list as per the prescriptions in circular No.05/2017 issued by the Kerala Public Service Commission based on the norms issued by the State Government in G.O.(P) No.8/2017/SWD dated 06.05.201, wherein the turns of the Differently Abled Candidates were revised from turns 33, 66, 99 to 1, 34, 67 respectively. Further it is the case of the Public Service Commission that in fact no DA candidate was available for advice from the rank list and hence the ## **OP(KAT).No.11 OF 2021 4** vacancy was set apart to be filled up from the next rank list as a “ _no candidate available_ ” turn (NCA turn) going by prescriptions in Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Central Act 1 of 1996), read with Section 34(2) of the Rights of Persons with Disabilities Act 2016 (Central Act 49/2016). 4. R1 herein has filed the instant Original Application, O.A. (EKM).No.2937 of 2017 before the Kerala Administrative Tribunal, Ernakulam Bench, with the following prayers (see page 21 of the paper book of the Original Petition): “ _a). Issue a direction to the respondents to give appointment to the applicant t0 the post of Lecturer in Food Science in the Department of Collegiate Education_ _b). to direct the 3[rd] respondent to report one vacancy of Lecturer in Food Science to the 2[nd] respondent for appointment from Annexure-A2 rank list._ _c). to direct the 3[rd] respondent to advise the applicant who is the rank No.1 in Annexure-A2 list for appointment to the post of Lecturer in Food Science._ _d). to command the 1[st] and 3[rd] respondents to appoint the applicant to the post of Lecturer in Food Science from the Annexure A2 rank list._ _e). declare that applicant is eligible and entitled to get appointment to the post of Lecture in Food Science in the Department of Collegiate Education;_ _f). issue such other appropriate order or direction as this Hon'ble Tribunal deems just and fit in the circumstance of the case.”_ ## **OP(KAT).No.11 OF 2021 5** 5 **.** It appears that the apprehension of the original applicant was to the effect that ordinarily the maximum currency 0f the rank list could be only for a period of three years, going by the operative portion of Rule 13 of the Kerala Public Service Commission Rules of Procedure and that the maximum validity period of the rank list may get expired on 30.08.2020. Consequently, when the original application came up for consideration before the Tribunal, it appears that due to paucity of time, the main matter could not be taken up for final disposal and hence, it appears that the counsel for the original applicant pressed for interim relief so as to protect the interests and rights of the applicant on the premise as if the rank list may other wise expire by 30.08.2020. Accordingly, the Tribunal has passed the impugned Exhibit-P3 interim order dated 24.08.2020 holding that since the vacancy has already been reported to the PSC is pending advice and the disputes centre around the advice and appointment to the above said post, the rank list in question, which came to force on 30.08.2017, need not be treated as expired on 29.08.2020 or the next working day, till the adjudication of the main matter in the original application. It is this interim order at Exhibit-P3 ## **OP(KAT).No.11 OF 2021 6** rendered by the Tribunal on 24.08.2020 that is under the challenge in the instance of the Kerala Public Service Commission. 6. It appears that one of the main contentions of the original applicant was to the effect that the stand of the Public Service Commission that the sole reported vacancy was to be set apart as against the DA turn was factually and legally wrong and that it should have been actually utilised by advising and appointing the original applicant, who is having rank No.1 thereof and that therefore, interdiction is called for in the impugned decision of the Public Service Commission so that their decision to set apart the sole reported vacancy to the NCA turn of Differently Abled candidate without advising anyone, as no candidate is available for any advice and not utilizing it for advice and appointment of candidates included the said rank list, more particularly rank No.1 thereof, is illegal and ultra vires, etc. It appears that it is for protecting the rights and interests of the original applicant that the impugned order has been passed on 24.08.2020. 7. It is by now well established that the currency of the rank list is fully regulated by the provisions contained in the Kerala ## **OP(KAT).No.11 OF 2021 7** Public Service Commission (Rules of Procedure) framed by virtue of the enabling powers conferred as per the Constitution of India. Rule 13 contains an operative portion thereof and 5 provisos thereto. We are only now mainly concerned with the operative portion of Rule 13 and the provisos thereto and Rule 14. The operative portion of Rule 13 and the provisos thereto and Rule 14 read as follows. _“Rule 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 Course 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 the provisions of the proviso above mentioned shall not be applicable for the selection for admission to the Forest Rangers Course and also for admission to the Diploma Course in Forestry for which selection have to be made annually in accordance with the instructions of the Government of India issued from time to time. For theses selections, the ranked lists will be in force only for a period of three months from the date of finalisation of the ranked lists or one month from the date of commencement of the Course whichever is later:_ _Provided further that the Commission may take steps for the preparation of a new ranked list whereever necessary even before the expiry of the period of one year of the ranked list, by inviting applications but that the ranked list prepared in pursuance of the said notification shall be brought into force only after the expiry of the period of one year of the existing ranked list:_ _Provided further that a ranked list from which no candidate is advised during the period of one year from the_ ## **OP(KAT).No.11 OF 2021 8** _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 candidat 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 atleast one candidate is advised from the list whichever is earlier:_ _Provided further that if the Commission is satisfied of the existance of a period of general ban declared by the Government on the reporting of vacancies to the Public Service Commission or of any other circumstances or of any extra-ordinary situation in which the reporting of vacancies by the appointing authorities is prevented or restricted or delayed, the Commission shall have the power to keep alive the ranked lists which are normally due to expire during the said period for such periods as may be decided by the Commission subject to a minimum period of three months or for such further periods but not exceeding one and a half year in the aggregate. If the Commission so decides it shall issue a notification, keeping alive the ranked lists in the above manner and shall advise candidates from such ranked lists to the vacancies reported during such extended period of validity of the ranked lists._ _Rule14. The Commission shall advice 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:”_ 8. It is by now well settled by a series of rulings of this Court including the one rendered by a Full Bench of this Court as in **Vimala Kumari vs. State [** 1994 (2) KLT 47 (F.B)], **Kerala Public Service Commissions vs. Sheejamol** [2020 (5) KLT 718 (F.B)], **Thankappan Adishar Vs. Panayannarkavu Temple Trust** [2020 (5) KLT 727] that the rank list finalised by the Kerala Public Service Commission can be utilised only for advice of candidates included in the said rank list only as against the vacancies reported during the currency of the rank list. That, ## **OP(KAT).No.11 OF 2021 9** going by the prescriptions of Rules of Procedure framed by the Kerala Public Service Commission, more particularly Rule 13 and Rule 14 thereof, a rank list finalised by the Kerala Public Service Commission can be utilised for advice of candidates included in the said rank list only as against vacancies reported during the currency of said rank list. The corollary to the same is that the rank list in question cannot be utilised for advice and appointment of candidates as against the vacancies, which are reported after the expiry of the rank list. Going by the entire nature of selection process, it is not right and proper for the courts to extend the outer time limit for the validity of the rank list finalised by the Public Service Commission. 9. That apart, it is to be noted that, going by the stand of the Kerala Public Service Commission the sole vacancy reported and pending before the Commission, during the currency of rank list in question, was set apart for NCA turn of the Differently Abled Candidates and that no further vacancies have been reported. Though the original applicant has got a case that the said stand of the Public Service Commission in setting apart the sole reported vacancy as against DA turn is factually and legally wrong, that aspect of the matter need not be adjudicated by this Court, as the main matter is pending before the Tribunal. Even going by the stand of the Kerala ## **OP(KAT).No.11 OF 2021 10** Public Service Commission, no candidate has so far been advised from the rank list in question which came into force on 30.08.2017. If that be so, going by the case of the Public Service Commission, then the mandatory prescriptions in the 4[th] proviso to Rule 13 of the KPSC (Rules of Procedure) would come into play which would then lead to a scenario that the rank list shall be extended by the Commission for a further period of one year after the expiry of the outer time limit of three years or till at least one candidate is advised from the list, whichever is earlier. Therefore, it is not as if the rank list, which came into force on 30.08.2017, will stand automatically get expired on 29.08.2020 after the lapse of three years, and going by the stand of the Public Service Commission, since no candidate has been advised in rank list even during the original maximum currency period of three years of the rank list, such rank list is to be extended by the Commission themselves, for a period of one year or till a candidate is advised from the rank list, whichever is earlier. 10. Futher Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission has also invited this Court's attention that as a matter of fact, subsequently the Commission themselves have issued Exhibit-P4 notification No.R1D(3)11998/2017/GW dated 16.09.2020, which reads as ## **OP(KAT).No.11 OF 2021 11** follows. _"_ ക��ക�ജ വ�ദ��ഭ��സ വ��പ�ൽ _lecturer in food science (cat No. 621/2012)_ തസത��യ�� _30.08.2017_ ത�യത�യ�ൽ പ�സ�ദ��ര�ച _843/2017/SS VI_ നമർ റ�ങ� ല�സ�ൻറ& മ(ന�വർഷറ+ ��ല�വധ���ള�ൽ ഒര� ഒഴ�വ മ�പതമ�ണ _.._ റ�കപ�ർട� റ3യത�ര���നത ഈ ഒഴ�വ ഭ�നക6ഷ� വ�ഭ�ഗ+�ന അർഹതറപടത�യ�ര�നത�ന�ൽ ഭ�ന ക6ഷ� വ�ഭ�ഗ+�ൻറ& അഭ�വ+�ൽ മ�&�റവക�ണ� വര��യ�< _,_ റ�ങ� ല�സ�ൻറ& സ=�ഭ�വ�� ��ല�വധ���ള�ൽ മ�&� ഒഴ�വ��ൾ റ�കപ�ർട� റ3യറപട�ത�ര����യ�< റ�ങ� ല�സ�ൽ ഉൾറപട ഒര�ൾ��ക��ല�< ന�യമന6���ർ6 നൽ��ൻ �ഴ�യ�ത�ര����യ�< റ3യത സ�ഹ3ര�+�ൽ _, KPSC Rules of Procedure Rule 13 proviso 3_ ൽ �ര�മർ6���< പ���ര< കമൽ റ�ങ� ല�സ�നററ ��ല�വധ� _30.08.2020_ ത�യത� മ�തൽ ഒര� വരഷ< �(ട�കയ� _,_ ഒര�റ�ങ�ല�< ന�യമന6���ർ6 റ3യറപട�നത� വറരകയ� ഏത�ണ ആദ�< വര�നത അത�വറര ദ�ർ��പ�ച�ര���ന� _.”_ Thus the Commission themselves have taken recourse to the mandatory prescriptions in the fourth provisos to Rule 13 of the Kerala Public Service Commission Rules of Procedure by ordering the extension of rank list for a further period of one year from 30.08.2020. In other words, the rank list should be in force for another one year period on and from 30.08.2020. Hence in the light of the specific stand taken by the Kerala Public Service Commission as above (irrespective as to the correctness or otherwise of the said stand) and also taking into account the prescriptions in fourth proviso to Rule 13 of the Kerala Public Service Commission Rules of Procedure, the interim order as one passed at Exhibit-P3 was not necessary or called for. Further, as observed by us, ordinarily it is not right and proper for the courts to pass an order for extension of rank ## **OP(KAT).No.11 OF 2021 12** list unless the jurisdictional facts stipulated in the Rules of Procedure for such extension are fully satisfied and the commission is not acting upon their constitutional duty to exercise their powers and functions in such matter. No doubt, the main matter was sought to be adjudicated by the Tribunal and due to extreme paucity of time, the Tribunal would have been itself compelled to adjourn the case on a different date and therefore, it may be only for the protection of rights and interests of the applicant that an order in the nature nature of Exhibit-P3 would have been passed by the Tribunal. In the light of these actual aspects and more so particularly in the light of the issuance of Exhibit-P4 notification dated 16.09.202o, we feel it only appropriate that the impugned Exhibit-P3 order of the Tribunal rendered on 24.08.2020 would deserve interdiction on the abovesaid short ground. That apart, the Kerala Public Service Commission has also clearly stated in para No.9 of Exhibit-P2 reply statement dated 14.11.2020 that the abovesaid sole reported vacancy in question in the post of Lecturer in Food Science in the Collegiate Education Department has already been ordered to be abolished by the competent authority of the State Government as per the orders in G.O(P) No.278/2020/HED dated 08/08/2020 and as per the request of the Director, Higher Education Department, the recruitment ## **OP(KAT).No.11 OF 2021 13** process for the abovesaid post has been temporarily suspended as well. It appears that the the original applicant has not so far amended the O.A, for incorporating a challenge as against the said abolition order as per G.O(P) dated 08/08/2020, if at all the petitioner has any grievances thereto. Sri.M.Sasindran, learned counsel for the original applicant that since the vacancy in question is reported quite early and as the abolition order issued as the G.O(P) dated 08/08/2020, can at best have prospective effect, the abolition order by itself will not take away the vested right of the original applicant to be considered for advice and appointment to the vacancy in question based on the norms and law as it stood at the time of the finalisation of the rank list in question on the basis of the inclusion of the original applicant as rank No.1 thereof. However, Sri.M.Sasindran, learned counsel appearing for the original applicant would point out that by way of abundant caution, his party will be instructed to ensure formal amendment of the pleadings and prayers in the O.A to incorporate a challenge against the G.O(P) dated 08/08/2020. These all matters, which would not coming within concern of this Court at this stage and it is for the parties to proceed further, as per law. ## **OP(KAT).No.11 OF 2021 14** 11. The upshot of the above discussion is that, the impugned Exhibit-P3 interim order passed by the Tribunal on 24.08.2020 would deserve interdiction and hence, it is ordered that the said Exhibit-P3 order dated 24/08/2020 will stand set aside and quashed. All contentions available to the original applicant in law are kept intact, with liberty to be raised and decided by the Tribunal in the main matter in the O.A without any further delay. Going by the nature of the controversy, it is only in the interests of both sides that there should be expeditious final disposal of the main matter in the O.A. It is for the original applicant to seek for early consideration and final disposal of the main O.A without any further delay and if any such request is made by the original applicant, we would only request the Tribunal to bestow their anxious consideration thereof, taking into account the nature of the facts and circumstances of this case, so as to facilitate early final disposal of the main matter in the O.A and in the manner, deemed fit and proper by the Tribunal in exercise of its discretion. In case the original applicant effects amendment of the main O.A to incorporate challenge as against the abovesaid abolished Government order, then it shall be ensured by the State **OP(KAT).No.11 OF 2021 15** Government that they file their reply statement on those issues before the Tribunal in this O.A., without any further delay. With these observations and directions, the above original petition will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** **Sd/-** **T.R.RAVI JUDGE** LEK ## **OP(KAT).No.11 OF 2021 16** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**TRUE COPY OF THE OA (EKM) NO.2937/2017**| ||**WITH ITS ANNEXURES.**| |**ANNEXURE A1**|**TRUE COPY OF THE NOTIFICATION DATED**| ||**15/12/2012 PUBLISHED BY THE 2ND**| ||**RESPONDENT.**| |**ANNEXURE A2**|**TRUE COPY OF THE RANK LIST IN CATEGORY**| ||**NO.621/2012.**| |**EXHIBIT P2**|**TRUE COPY OF THE REPLY STATEMENT FILED**| ||**ON BEHALF OF RESPONDENT NO.2.**| |**EXHIBIT P3**|**TRUE COPY OF ORDER IN OA (EKM)**| ||**NO.2937/2017 DATED 24/08/2020.**| |**EXHIBIT P4**|**TRUE COPY OF THE NOTIFICATION DATED**| ||**16/09/2020.**|