OP(KAT).No.282 OF 2020

**“C.R.”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942** **OP(KAT).No.282 OF 2020** **AGAINST THE ORDER IN OA NO.686/2015 DATED 04-10-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/APPLICANTS 3 TO 5, 7, 10 &12 IN OA:** |**1**|**VINOD T.P.**| |---|---| ||**AGED 38 YEARS**| ||**S/O.PREMANANDAN,**| ||**THOTTATTUVELI, KALAVOOR P.O.,**| ||**CHERTHALA,**| ||**ALAPPUZHA-688 536.**| |**2**|**SANILKUMAR.T.M.**| ||**AGED 39 YEARS**| ||**S/O.MANGALAM,**| ||**THATTARA HOUSE,**| ||**VANDANAM P.O.,**| ||**ALAPPUZHA-688 005.**| |**3**|**VIMAL MOHAN,**| ||**AGED 32 YEARS**| ||**S/O.MOHANAN, AYYANAD,**| ||**PATTANAKKADU P.O.,**| ||**CHERTHALA,**| ||**ALAPPUZHA-688 531.**| |**4**|**VINAYABABU**| ||**AGED 42 YEARS**| ||**S/O.CHELLAPPAN, EAST VADASSERY,**| ||**PUNNAPRA P.O., ALAPPUZHA-688 004.**| |**5**|**ALEX LOUIS,**| ||**AGED 32 YEARS**| ||**S/O.P.J.LOUIS,**| ||**PUTHENPURAKKAL,**| ||**PATHIRAPPALLY P.O.,**| ||**OMANAPPUZHA,**| **OP(KAT).No.282 OF 2020** 2 ## **ALAPPUZHA-688 521.** - **6 SIRAJUDEEN.V.K. AGED 35 YEARS S/O.KUNJU ISMAIL, VELIPARAMBIL, CMC-32, CHERTHALA P.O., ALAPPUZHA-688 524.** **BY ADVS. SRI.P.NANDAKUMAR SHRI.S.ANEESH** ## **RESPONDENTS/RESPONDENTS & APPLICANTS 1,2,6,8,9, & 11 IN OA:** - **1 THE SECRETARY KERLA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM-695 004.** - **2 THE DISTRICT OFFICER., KPSC DISTRICT OFFICE, ALAPPUZHA, CRESCENT MANSION, SOUTH OF COLLECTORATE, ALAPPUZHA-688 001.** - **3 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **4 THE DIRECTOR, DIRECTORATE OF SOCIAL JUSTICE, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.** - **5 THE DISTRICT SOCIAL JUSTICE OFFICER, NEAR IRON BRIDGE, ALAPPUZHA-688 011.** - **6 THE DIRECTOR, DIRECTORATE OF URBAN AFFAIRS, SWARAJ BHAVAN, NANTHANCODE, THIRUVANANTHAPURAM-695 003.** - **7 THE CHIEF ENGINEER, KUTTANAD PACKAGE CIRCLE, MANCOMPU, ALAPPUZHA-688 503.** - **8 THE EXECUTIVE ENGINEER, BUILDING DIVISION (PWD), COLLECTORATE BUILDING,** **OP(KAT).No.282 OF 2020** 3 ## **ALAPPUZHA-688 001.** - **9 THE DEPUTY DIRECTOR OF PANCHAYATH, CIVIL STATION, ALAPPUZHA-688 001.** - **10 THE DISTRICT SUPPLY OFFICER, CIVIL STATION, ALAPPUZHA-688 002.** - **11 THE DISTRICT OFFICER, DEPARTMENT OF MINING AND GEOLOGY, MINI CIVIL STATION, CHERTHALA P.O., ALAPPUZHA-688 524.** - **12 SUPERINTENDING ENGINEER, KUTTANAD DEVELOPMENT CIRCLE, PWD REST HOUSE BUILDING, KOTTAYAM-686 112.** - **13 CHIEF ENGINEEER, IRRIGATION AND ADMINISTRATION, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695 033.** - **14 CHIEF ENGINEER, PWD, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695 033.** - **15 THE DISTRICT COLLECTOR, COLLECTORATE, PALACE ROAD, ALAPPUZHA-688 001.** - **16 BIJU.J. AGED 40 YEARS S/O.JANARDHANAN, SREESAILAM, MAHADEVIKADU P.O., KARTHIKAPALLY, ALAPPUZHA-688 516.** - **17 MURUKADAS.E.D. AGED 41 YEARS S/O.DASAPPAN, EERAKARIYIL, VAYALAR P.O., CHARTHALA, ALAPPUZHA-688 536.** - **18 GIRISHKUMAR.P., AGED 42 YEARS S/O.PONNAPPAN, EAST VADASSERY,** **OP(KAT).No.282 OF 2020** 4 **PUNNAPRA P.O., ALAPPUZHA-688 004.** **19 BIJU.P.G., AGED 43 YEARS S/O.GOPI, PANASSERIL HOUSE, KOMMADY WARD, THUMPOLY P.O., ALAPPUZHA-688 008.** **20 SUMESH.P.S., AGED 35 YEARS S/O.SHANMUGHAN, PUTHENPURACKAL, THAICKAL P.O., CHERTHALA, ALAPPUZHA-688 530.** - **21 BIJUKUMAR.P.T., AGED 46 YEARS S/O.THANKAPPAN, POZHICKAD HOUSE, KOMMADY WARD, THUMPOLY P.O., ALAPPUZHA-688 008.** **R3-15 BY SR.GOVERNMENT PLEADER SRI.B.VINOD** ## **SRI.P.C.SASIDHARAN,SC,** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 08.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No.282 OF 2020** 5 # **“C.R.”** # **ALEXANDER THOMAS & T.R.RAVI, JJ.** **=========================== O.P.(KAT).No.282 of 2020** _[arising out of order dated 04.10.2019 in O.A.No.686 of 2015 of the KAT, Thiruvananthapuram_ **===========================** Dated this the 08[th] day of February, 2021 ## **JUDGMENT** ## Alexander Thomas, J The prayers in the afore-captioned Original Petition filed under Article 226 & 227 of the Constitution of India, are as follows: (See page No.5 of the paper book of this Original Petition). “(i) To call for the records leading to Exhibit P1 order of the Kerala Administrative Tribunal in O.A.No.686 of 2015, set aside the same and allow the OA as prayed for. (ii) To issue such other orders or directions as this Hon'ble Court may deem it fit and proper in the circumstances of the case.” 2. Heard Sri,.P.Nandakumar, the learned counsel appearing for the petitioners in the OP/applicants 3 to 5, 7, 10 and 12 in the OA, Sri.P.C.Sasidharan, the learned Standing Counsel for the Kerala Public Service Commission (PSC) appearing for respondents 1 and 2 herein, Sri.B.Vinod, the learned Senior Government Pleader appearing for respondents 3 to 15, contesting respondents 16 to 21 in this Original Petition are original applicants **OP(KAT).No.282 OF 2020** 6 in the O.A. other than the petitioners herein and who have already obtained advice. In view of the said submission that the said contesting respondents in the OP have already secured advice or appointments and as there is no conflicting interest in this OP and the said contesting respondents in the OP, as all of them had jointly prosecuted the application as joint applicants, notices to contesting respondents 16 to 21 will sand dispensed with. 3. The case of the petitioners herein is that they have been duly included in Annexure A1 rank list dated 05.01.2011 for the post of Driver Grade II (Light Duty Vehicle - LDV) for various departments in Alappuzha District pursuant to the selection notification issued in that regard by the respondent-PSC and further that the said rank list has expired on 20.06.2015. The further case of the petitioners in the O.P is to the effect that based on the interim order dated 05.06.2015 rendered by the Kerala Administrative Tribunal, Thiruvananthapuram Bench in the instant O.A No.686 of 2015, 8 vacancies in the post of Driver (LDV) under the Department-Directorate of Social Justice, under R4 and R5 herein, were in fact reported by them to the PSC on 16.06.2015, which is before the expiry of the rank list on 20.06.2015. It is further that the 4[th] respondent-Directorate of Social Justice has filed Ext.P5 reply **OP(KAT).No.282 OF 2020** 7 statement dated 03.07.2015 before the Tribunal, in the said O.A., wherein it has been admitted that there are 14 sanctioned posts of Driver in the Alappuzha District under the Integrated Child Development Scheme (ICDS), functioning under the said Department of Social Justice and as against such 14 sanctioned posts, 6 persons are working now and the balance vacancies as against the sanctioned post is 8, the limited attempt made by the petitioners herein is to the effect that though the main O.A. dealt with by the Tribunal is in relation to the selection of appointment of candidates included in Annexure A1 rank list as against the vacancies in various departments, the focus in this case is mainly in respect of the alleged vacancies under the Department of Social Justice, and that no pleas are made as against the other departments for the reason that none of them had reported vacancies during the pendency of the O.A, before the expiry of the rank list. Hence, the petitioners in the O.P. would contend that the limited plea is only in relation to the 6 alleged vacancies said to be in existence and that 8 vacancies were in fact provisionally reported by the respondent - Director of Social Justice to the PSC well before the expiry of Annexure A1 rank list on 20.06.2015 and that the crucial aspect of the matter has not been taken into consideration while rendering **OP(KAT).No.282 OF 2020** 8 impugned Ext.P1 final order dated 04.10.2019 in the instant O.A.No.686 of 2015 and that therefore the verdict of the Tribunal to that limited extent would call for interdiction in the hands of this Court in respect of the 8 alleged vacancies said to have been in existence and actually reported to the PSC well before the expiry of the rank list etc. The stand of the respondent-Department of Social Justice, has been made out before the Tribunal in Ext.P5 reply statement dated 03.07.2015 (see page Nos.84 to 89 of this paper book). Now, pursuant to the directions issued by this Court in this case, the said respondent-Directorate of Social Justice has filed an affidavit dated 30.01.2021 in this case before this Court. 4. A reading of Ext.P5 reply statement dated 30.01.2021 filed by the respondent-Directorate of Social Justice before the Tribunal would indicate as follows:- “2. It is submitted that there were 14 sanctioned posts of drivers in Alappuzha District under Social Justice Department under the Integrated Child Development Scheme. As against the 14 sanctioned posts, 6 persons are working now. As regards the remaining 8, two vehicles are already condemned, 3 vehicles are due for condemnation and only three vehicles are functioning. The ICDS is a centrally sponsored scheme (C.S.S) and 90% of its expenditure is being met by Government of India. Vide letter No.F.No.1-3/2002-CDI (Vol.II) dated 2.4.2003 (copy enclosed), the Govt. of India , as item 5(iv), have directed the State Government, not to fill the sanctioned posts of drivers as and when they fall vacant; instead these posts will stand abolished as and when they fall vacant. The decision is in line with the decision of not procuring new vehicles under the ICDS Scheme but only hiring vehicles in future. It is also instructed that existing functional vehicles may be manned by **OP(KAT).No.282 OF 2020** 9 using available drivers only, by undertaking transfers wherever necessary. Central Govt. vide letter No.1-4/2014-CDI dtd: 5.6.2014 also reiterated the position as item 4(iv) (copy enclosed). For ICDS purpose, private vehicles are hired on rent basis. This decision is in line with the administrative policy of Govt. of India. Since the vacancies of drivers in Alappuzha District under ICDS Scheme are abolished/abolishing, the State Government is not in a position to report such vacancies to the Public Service Commission, due to the aforesaid facts.” 5. In para 2 given on internal page 1 and 2 of Ext.P5 reply statement (see page Nos.85 and 86 of the paper book), it is stated that there were 14 sanctioned posts of drivers under the Social Justice Department in Alappuzha District under the Integrated Child Development Scheme(ICDS) and as against such 14 sanctioned posts, 6 persons are now working and as against the remaining 8 posts, two vehicles are already condemned, 3 vehicles are due for condemnation and only three vehicles are functioning. Further very crucial it is stated that the ICDS is a centrally sponsored scheme (C.S.S) and 90% of its expenditure is met by Union Government. Further that as per letter dated 2.4.2003 issued by the Union Government (subsequently produced as Annexure R4(a) along with the aforesaid affidavit dated 30.01.2021 filed by the respondent in this case before this Court), it has been stated in para 4(iv) given on internal page 2 of Annexure R4(a) that sanctioned post of drivers may, henceforth, not be filled up as and when they fall vacant, but they stand abolished as and when they fall vacant and that this is in **OP(KAT).No.282 OF 2020** 10 line with the decision of not procuring new vehicles under the ICDS Scheme, but only hiring vehicles in future and necessary instructions in this regard have already been issued separately vide the said Department's letter (Department of Women and Child Development in the Union Government of India in the Ministry of Human Resources Development etc) . It is pertinent to refer to para 5 (iv) given on internal page 2 of Annexure R4(a), reads as follows: “5(iv). Sanctioned posts of Drivers may, henceforth, not be filled up as and when they fall vacant, but may stand abolished as and when they fall vacant. This is in the line with the decision of not procuring new vehicles under the ICDS Scheme, but of only hiring vehicles in future. Necessary instructions in this regard have already been issued. Separately vide this Department's letter No.53/2000-CD.1 (Vol.II) dated 07.01.2003. Existing functional vehicles may be manned by using available (in-place) Drivers only, by undertaking transfers, wherever necessary. In the contingency that the number of existing, functional vehicles is/becomes more than the number of available (in-place) Drivers, a specific proposal for an appropriate decision under the circumstances may be sent to the Department of Women & Child Development, Government of India.” 6. Further it is stated in Ext.P5 reply statement that the decision is in line with the policy decision of not procuring new vehicles under the ICDS Scheme, but only hiring vehicles in future and that only existing, functional vehicles may be manned by using available drivers only, by undertaking transfers wherever necessary. Further a reference is also made yet another letter dated 05.06.2014 issued by the competent authority in Union Government, which has **OP(KAT).No.282 OF 2020** 11 been produced subsequently as Annexure R4(b) along with the aforesaid affidavit dated 30.01.2021 filed by the respondentdepartment in this case. It is pointed out that in para 4(iv) given on internal page 2 of Annexure R4(b) letter dated 05.06.2014, the competent authority of the Union Government of India, Ministry of Women and Child Development has ordered that sanctioned posts of drivers may, henceforth, not be filled up as and when they fall vacant, but may stand abolished as and when they fall vacant. It is important to refer para No.4(iv) given on internal page No.2 of Annexure R4(b) letter dated 5.6.2014 reads as follows:- “4(iv) Sanctioned posts of Drivers, may henceforth, not be filled up as and when they fall vacant, but may stand abolished as and when they fall vacant.” 7. Hence it is pointed out that since the Union Government funds 90% of the project and the financial role of the State Government is to fund 10% of the project, the competent authority of the Department of Social Welfare, is bound to obey and comply strictly the directions and instructions issued by the competent authority of the Union Government in Annexure R4(a) and Annexure R4(b) letters and therefore, the said so called 8 sanctioned posts, cannot be filled up and has to be treated as abolished by the impact of directives issued by the Union Government funding **OP(KAT).No.282 OF 2020** 12 agency of the ICDS Scheme going by the instruction contained in Annexure R4(a) letter dated 02.04.2003 and Annexure R4(b) letter dated 5.6.2014 issued by the competent authority-Union Government, in the Ministry/the Department concerned. 8. Accordingly, it is pointed out by Sri.B.Vinod, learned Senior Government Pleader appearing for the respondent-State authorities concerned that the respondent-Directorate of Social Justice Department has no alternative to strictly obey the directives of the Union Government in Annexure R4(a) and Annexure R4(b) and the said so called sanctioned post has been treated as abolished and cannot be filled up in the manner as prayed for by the original petitioners by the filling up the same by utilizing the candidates from among the rank list in question. It is accordingly urged that the vacancies provisionally reported by the respondent-department only provisionally compliance with the interim order passed by the Tribunal and that the said compliance is only provisional and since the respondent-Social Justice Department cannot fill up these vacancies, the said requisition was sent on a provisional basis to the PSC and that too only for compliance of the interim order of the Tribunal, may be treated as cancelled for all purposes and that no directions may be issued by this Court to the PSC to advice **OP(KAT).No.282 OF 2020** 13 candidates included in Annexure A1 rank list to fill up those so called 8 vacancies and that consequently no directions may also be issued to the respondent-Directorate of Social Justice to issue appointment orders as against the candidates as those vacancies are non-existing and has to be treated as abolished more so particularly, as they are only so called post in a project scheme, 90% of which is funded by the Union Government. The abovesaid factual pleadings are not in any manner factually rebutted by the petitioners in the O.P. Presumably, it is only on account of the abovesaid averment in Ext.P5 reply statement that the Tribunal has also not entered into those aspects in relation to the alleged 8 vacancies reported provisionally by the respondent-Department of Social Justice. 9. That apart, it is fine and well settled rulings by the Apex Court as in **Shankarsan Dash v. Union of India** [1991(3) SCC 47 : AIR 1991 SC 1612] , para No.7 thereof that 'it is not correct to hold that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied and that ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they will not acquire any right to **OP(KAT).No.282 OF 2020** 14 the post and that unless the relevant recruitment rules so indicate, the State is under the legal duty to fill up all or any of the vacancies and that it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide and for appropriate reasons and if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates as reflected in the recruitment test and no discrimination can be permitted and the correct position has been consistently followed by the Apex Court and as can be seen from the catena of decisions in **Haryana v. Subhash Chander Marwaha** [AIR 1973 SC 2216] , **Miss. Neelima Shangla v. State of Haryana** [(1986) 4 SCC 268] and **Jitendra Kumar v. State of Punjab** [AIR 1984 SC 1850)'. It is pertinent to refer to paragraphs 7 and 8 of the decision of the Apex Court in **Shankarsan Dash** case (supra), which read as follows:- “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This **OP(KAT).No.282 OF 2020** 15 correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, (1974) 1 SCR 165 :(AIR 1973 SC 2216), Miss Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 : (AIR 1987 SC 169), or Jitendra Kumar v. State of Punjab, (1985) 1 SCR 899 : (AIR 1984 SC 1850). 8. In State of Haryana v. Subhash Chander Marwaha, (AIR 1973 SC 2216) (supra) 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who has secured more than 55% marks, were appointed, although under the relevant rules the eligibility condition required only 45% marks. Since the High Court had recommended earlier to the Punjab Government that only the candidates securing 55% marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the high Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the Government to decide how many appointments should be made and although the High Court had appreciated the position correctly, it had “somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies”. It was expressly ruled that the existence of claim of some of the candidates selected for appointment, who were petitioners in Jitendra Kumar v. State of Punjab, (AIR 1984 SC 1850), was turned down holding that it was open to the Government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Miss Neelima Shangla v. State of Haryana, (AIR 1987 SC 169) was allowed by this Court but not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter has been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The Government accordingly made only 17 appointments and stated before the court that they were unable to select and appoint more candidates as the commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and there must be a conscious application of mind by the Government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this **OP(KAT).No.282 OF 2020** 16 regard was emphasised in this judgment. None of these directions, therefore, supports the appellant.” 10. A Full Bench of this Court in the recent decision rendered in **Kerala Public Service Commission and another v. Sheejamol M.C. and others** [2020(5) KHC 555 (FB] as held in paragraphs 12 and 13 are as follows:- _12. We are now called upon to consider the third issue i.e. whether the existence of vacancies and the existence of a valid ranked list would require the employer (the appointing authority) to fill up those vacancies before the expiry of the ranked list either on account of the fact that a direction had been issued by the Court/Tribunal to report vacancies or otherwise. We would think not. The question as to whether a particular vacancy or vacancies should be filled up is a matter to be considered by the appointing authority. If for any reasonable and bonafide reasons, including the financial situation of the appointing authority, such authority takes the position that the vacancies in question need not be filled up it would not be proper for this Court to thrust upon the unwilling employer (appointing authority) candidates included in a ranked list for it is settled law that mere inclusion in a ranked list does not give to the candidates in question a vested right to appointment. The law on this point is settled by the judgment of a Constitution Bench of the Supreme Court in Shankarsan Dash v. Union of India, and we do not see any other judgement which has watered down this principle. The opening paragraph of that judgment reads thus: -_ _"This appeal was earlier heard by a Division Bench and was referred to a Constitution Bench for examining the question whether a candidate whose name appears in the merit list on the basis of a competitive examination, acquires indefeasible right of appointment as a government servant if a vacancy exists. Reference was made to the decisions in State of Haryana v Subash Chander Marwaha [(1974) 3 SCC 220] : [1973 SCC (L&S) 488 : (1974) 1 SCR 165, , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759 and Jatinder Kumar v. State of Punjab, [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899" ._ _Considering the question, it was held (paragraph 7 of SCC)_ _"7. It is not correct to say that if a number of vacancies are_ **OP(KAT).No.282 OF 2020** 17 _notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v Subash Chander Marwaha [(1974) 3 SCC 220] : [1973 SCC (L&S) 488 : (1974) 1 SCR 165, , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759 and Jatinder Kumar v. State of Punjab, [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899" ._ _Thus the fact that there are vacancies in existence in a particular cadre in Government or in any organization and the fact that there is a valid list prepared by the Public Service Commission or any other agency (in cases where consultation with the Public Service Commission is not mandated either in terms of the Constitution or any other law) is no ground for a Court to direct the filling up of such vacancies._ _13. We therefore answer the reference in the following manner: -_ _(I) xxxxxxx_ _(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 force, this Court will not, in exercise of its jurisdiction under Article 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. Having answered the reference, we direct the Registry to place these writ appeals before the appropriate Bench for disposal. ''_ 11. In the light of these aspects, the abovesaid submissions **OP(KAT).No.282 OF 2020** 18 made by the learned Senior Government Pleader would merit our acceptance that the so called 8 sanctioned posts have been treated as abolished, in view of the directions issued by the Union Government as per Annexure R4(a) and Annexure R4(b) letters and more so particularly, as the so called posts are only attached to a project Scheme 90% of which is funded by the Union Government and if the said directives are disobeyed by the respondent-Director of Social Justice, then it might invite strict action from the funding authority to temporarily or permanently withhold the funds etc, which would be very detrimental to the very functioning of the ICDS, which is the key activity of the Department of the Women and Child Development both under the State Government Level and the Union Government Level. Now, the Social Justice Department forms part of the re-designated department of Women and Child Development after the bifurcation of the erstwhile integrated department of Social Justice. These aspects of matter borne out from Annexure R4(a) and Annexure R4(b) and also reiterated in the affidavit dated 30.01.2021 filed by the respondents 4 and 5 in this Original Petition. 12. Hence, we are unable to grant any of the prayers canvassed by the petitioners in the present O.P. 13. However, Sri.P.Nandakumar, the learned counsel **OP(KAT).No.282 OF 2020** 19 appearing for the petitioners would submit on instructions that though the respondent-department authorities would piously place reliance on the so called abolition of posts in terms of Annexure R4(a) and Annexure R4(b) letters, it is reliably learnt that even now daily wage persons and provisional persons are being engaged by the respondent-Department of Social Justice, as drivers to cater to their travel requirements and that the said practice is illegal and would amount to violating the directives issued by the Union Government as per Annexure R4(a) and Annexure R4(b), since the stand that the so called vacancies in question stand abolished etc. 14. In that regard Sri. P.Nandakumar, the learned counsel appearing for the petitioners would also place reliance on the decision of this Court in **Kerala State Road Transport Corporation and Another v. Soumya and Others** [2018 (4) KHC 816 (DB), as held in paragraph 17, which reads as follows:- “ 17. Needless to say, the KSRTC would not be in a position to fill up the 209 vacancies involved herein in any manner, be that temporary, adhoc, contract or such other; and that for all practical purposes, it would be deemed that these vacancies are now abolished.” 15. In the light of the specific stand taken by the respondentDepartment of Social Justice as well as the Union Government, the Union Ministry concerned as per Annexure R4(a) and Annexure **OP(KAT).No.282 OF 2020** 20 R4(b) it is ordered that none of the posts covered by para 5(iv) of Annexure R4(a) letter dated 2.4.2003 and para No.4(iv)of Annexure R4(b) letter dated 5.6.2014 shall be utilized in any manner by the respondent-Director of Department of Social Justice either for utilizing them on regular basis or by provisional employees or daily wage employees or contractual employees. From a reading of Annexure R4(a) and Annexure R4(b) it is seen that the consistent stand of the Union Government is that if there is real requirement for use of vehicle, then hiring of vehicles may be resorted to. Hence, if the respondent-Department of Social Justice, is constrained to resort to use of vehicles, then it is for them to resort to the method of hiring of vehicle as permitted by the Union Government in Annexure R4(a) and Annexure R4(b). If that be so, _prima facie_ , it appears that steps may be taken by the respondent-Department of Social Justice/Women and Child Development after consultation with the local bodies concerned as to whether some arrangement of taxi pool could be formed by utilizing the services of persons, if any, who have been earlier engaged as provisional drivers/daily wage drivers etc., or some such other reasonable method so as to ensure that the department would resort to effective hiring of vehicles so as to fulfill their requirements and at the same time, the directives issued by the **OP(KAT).No.282 OF 2020** 21 Union Government are complied. With these observations and directions it is ordered that the main prayer in the OP fails and in the light of the above aspects, it is ordered that the original Petition stands dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R.RAVI, JUDGE** dlk/09.02.2021 **OP(KAT).No.282 OF 2020** 22 ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER DATED 04.10.2019 IN OA NO.686 OF 2015 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL.** - **EXHIBIT P2 TRUE COPY OF OA (EKM) NO.686 OF 2015.** - **ANNEXURE A1 TRUE COPY OF RANKED LIST FOR THE POST OF DRIVER GRADE II FOR VARIOUS DEPARTMENTS IN ALAPPUZHA.** - **ANNEXURE A2 TRUE COPY OF THE APPOINTMENT CHART. ANNEXURE A3 TRUE COPY OF THE REPLY UNDER RTI ACT DATED 30.11.2014.** - **ANNEXURE A4 TRUE COPY OF THE REPLY UNDER RTI ACT DATED 07.11.2014.** - **ANNEXURE A5 TRUE COPY OF THE REPLY UNDER RTI ACT DATED 21.10.2014.** - **ANNEXURE A6 TRUE COPY OF THE REPLY UNDER RTI ACT DATED 06.03.2015.** - **ANNEXURE A7 TRUE COPY OF THE REPLY UNDER RTI ACT DATED 05.11.2014.** **ANNEXURE A8 TRUE COPY OF CIRCULAR NO.10336/ADV.C3/2014/P & ARD DATED 23.07.2014. ANNEXURE A9 TRUE COPY OF THE REPLY UNDER RTI ACT DATED 21.11.2014.** - **ANNEXURE A10 TRUE COPY OF THE REPLY UNDER RTI ACT DATED 05.11.2014.** - **ANNEXURE A11 TRUE COPY OF THE REPLY UNDER RTI ACT DATED 29.10.2014.** - **ANNEXURE A12 TRUE COPY OF THE REPLY UNDER RTI ACT DATED 05.03.2015.** - **EXHIBIT P3 TRUE COPY OF MA NO.1417 OF 2015.** - **ANNEXURE A13 TRUE COPY OF THE REPLY UNDER RTI ACT DATED** **OP(KAT).No.282 OF 2020** 23 **16.03.2015.** **ANNEXURE A14 TRUE COPY OF THE REPLY UNDER RTI ACT DATED 28.03.2015. EXHIBIT P4 TRUE COPY OF MA NO.1478 OF 2015. ANNEXURE A15 TRUE COPY OF APPLICATION UNDER RTI ACT. ANNEXURE A16 TRUE COPY OF THE REPLY UNDER RTI ACT DATED 10.03.2015. EXHIBIT P5 TRUE COPY OF THE REPLY STATEMENT FILED BY 4TH RESPONDENT IN THE OA. EXHIBIT P6 TRUE COPY OF THE REPLY STATEMENT FILED BY 7TH RESPONDENT IN THE OA. ANNEXURE R7(A) TRUE COPY OF LETTER NO.B7-27082/2013 DATED 01.11.2013. ANNEXURE R7(B) TRUE COPY OF LETTER NO.E1-1126(B)/KP DATED 04.11.2013 ANNEXURE R7(C) TRUE COPY OF LETTER NO.E2-88/2015//KP DATED 20.03.2015. ANNEXURE R7(D) TRUE COPY OF LETTER NO.E2-88/2015//KP DATED 06.03.2015. EXHIBIT P7 TRUE COPY OF THE REPLY STATEMENT FILED BY 11TH RESPONDENT IN THE OA. ANNEXURE R11(A)TRUE COPY OF LETTER NO.ARI(4)122/06 DATED 09.06.2015. ANNEXURE R11(B)TRUE COPY OF LETTER NO.5973/E2/2015 DATED 04.07.2015. ANNEXURE R11(C)TRUE COPY OF ORDER NO.542/201516/5973/E2/2015 DATED 16.11.2015. EXHIBIT P8 TRUE COPY OF THE REPLY STATEMENT FILED BY 13TH RESPONDENT IN THE OA. ANNEXURE R13(A)TRUE COPY OF GOVERNMENT LETTER NO.4758/R1/2007/P & ARD DATED 14.01.2009. EXHIBIT P9 TRUE COPY OF MA NO.822 OF 2019. ANNEXURE A17 TRUE COPY OF REPLY UNDER RTI ACT DATED** **OP(KAT).No.282 OF 2020** 24 **08.03.2019.** **ANNEXURE A18 TRUE COPY OF REPLY UNDER RTI ACT DATED 23.03.2019. ANNEXURE A20 TRUE COPY OF REPLY UNDER RTI ACT DATED 27.03.2019. ANNEXURE A21 TRUE COPY OF REPLY UNDER RTI ACT DATED 26.12.2018.** - **ANNEXURE A22 TRUE COPY OF REPLY UNDER RTI ACT DATED 25.03.2019.** - **ANNEXURE A23 TRUE COPY OF REPLY UNDER RTI ACT DATED 27.03.2019.** - **ANNEXURE A24 TRUE COPY OF REPLY UNDER RTI ACT DATED 22.03.2019.** - **ANNEXURE A25 TRUE COPY OF REPLY UNDER RTI ACT DATED 11.03.2019.** - **EXHIBIT P10 TRUE COPY OF REJOINDER FILED BY THE PETITIONER TO THE REPLY STATEMENT OF THE RESPONDENTS.** ## **RESPONDENTS ANNEXURES** - **ANNEXURE R4(A) TRUE COPY OF LETTER NO.F.NO.1-3/2002-CD1(VOL.II) DATED 02.04.2003** **ANNEXURE R4(B) TRUE COPY OF LETTER NO.1-4/2014-CDI OF MINISTRY OF WOMEN AND CHILD DEVELOPMENT DATED 05.06.2014**