Padma Lekshmi.P v. Kerala Public Service Commission & Ors.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ``` & ``` ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 ``` ## **`RP NO. 795 OF 2022`** ``` AGAINST THE JUDGMENT DATED 28.02.2022 IN OP(KAT) NO.350/2019 OF HIGH ``` ``` COURT OF KERALA ``` ## **`REVIEW PETITIONER/PETITIONER IN O.P. (KAT):`** ``` PADMA LEKSHMI.P AGED 37 YEARS, W/O. K. MANIKANDAN, RESIDING AT NADAR HOUSE, VELIYANNUR, THRISSUR, PIN – 680021. BY ADVS. ELVIN PETER P.J. K.R.GANESH GOURI BALAGOPAL ABHIJITH.K.ANIRUDHAN SREELEKSHMI A.S. ANU JOSEPH ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 4 IN O.P. (KAT):`** ``` 1THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM PALACE.P.O., THIRUVANANTHAPURAM, KERALA, PIN – 695004. 2THE REGIONAL OFFICER, KERALA PUBLIC SERVICE COMMISSION, REGIONAL OFFICE, CORPORATION BUILDING, ANDAMUKKAM, KOLLAM, PIN – 691001. 3STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, GENERAL EDUCATION (S.C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001. 4THE DIRECTOR, DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION, 3RD FLOOR, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, KERALA, PIN – 695001. ``` ## **`OTHER PRESENT:`** ``` SRI. P.C.SASIDHARAN-SC SRI. SAIGI JACOB PALATTY, SR. G.P. ``` ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **-------------------------------------------------------------------------** ## R.P. No.795 of 2022 _(arising out of the judgment dated 28.02.2022 in O.P. (KAT) No.350/2019)_ **--------------------------------------------------------------------** Dated this the 12[th] day of April, 2023 ## **O R D E R** This is an application seeking review of the impugned judgment rendered on 28.02.2022 by the Division Bench of this Court in O.P. (KAT) No.350/2019, filed by the petitioner herein. 2. Heard; Sri.P.J. Elvin Peter, learned Advocate, instructed by Sri.K.R. Ganesh, learned counsel appearing for the petitioner in the review petition, Sri.P.C. Sasidharan, learned Standing Counsel for the Kerala Public Service Commission (‘PSC’ for short), appearing for R1 & R2 and Sri.Saigi Jacob Palatty, learned Senior Government Pleader, appearing for official respondents 3 & 4. 3. The operative portion of the main directions and orders passed by this Court are contained in para No.15 of the impugned judgment in the O.P. (KAT) and the same reads as follows:- _“15. Further, in the light of the abovesaid concluded directions issued by the Division Bench of this Court in_ _**Revathy’s** case (supra), it is ordered that if substantive vacancies which have arisen before 09.05.2018 have been duly reported to the PSC, the vacancy requisition report of which has reached the PSC office before the expiry of the 3 year maximum period of the rank list and such vacancy has been kept pending for advice due to the abovesaid disputed issues, then the PSC, if_ R.P. No.795 of 2022 2 _necessary, may ascertain from the appointing authority as to whether the vacancy in question has arisen before 09.05.2018 and if it is found so, advice may be made as against such vacancies which have arisen before 09.05.2018, so long as such vacancy requisition report has been received by the PSC before the expiry of the rank list.”_ 4. So, the concluded directions issued by this Court, as per the impugned judgment, is that, if the substantive vacancies, which have arisen before 09.05.2018, have been duly reported to the PSC, and the vacancy requisition report on the same has reached the PSC office before the expiry of the 3 year maximum period of the rank list, and such vacancy has been kept pending for advice due to the issues disputed in this case, then the PSC, if necessary, was given liberty to ascertain from the appointing authority as to whether the substantive vacancy in question has arisen before 09.05.2018 and if it is so found, then advice could be made, as against such vacancies which have arisen before 09.05.2018, so long as such vacancy requisition report has been received by the PSC before the expiry of the rank list. 5. In the instant case, the rank list in question was for the post of Laboratory Technical Assistant (Computer Application) (Category No.125/2014), in the Vocational Higher Secondary Education department, which came into force on 08.11.2017 and R.P. No.795 of 2022 3 the three year maximum period has expired on 07.11.2020. 6. This Court, as per the impugned judgment, mainly relied on the dictum laid down by an earlier Division Bench verdict of this Court in _**Revathy V.S. v. Kerala Public Service Commission & Ors.**_ [2012 (3) KHC 940], which had laid down that only substantive vacancies, which have arisen on or before 09.05.2018 (date of the Government ban order), can be utilised for advice and appointment, etc. One of the pleas taken by the review petitioner is that some of the substantive vacancies, which were already reported by the appointing authority to the PSC before the expiry of the rank list, has not been utilised for advice, despite the fact that those pending vacancies are substantive vacancies which have arisen before 09.05.2018. In other words, the plea is that, there are such substantive vacancies which have arisen before 09.05.2018 reported before the expiry of the rank list on 07.11.2020 and the same has been kept pending for advice by the PSC and that, the same would amount to violation of the directions issued by this Court. The respondents have furnished instructions and it is stated by them that the last advice was made by the PSC from the above rank list on R.P. No.795 of 2022 4 04.10.2021 to four Non Joining of Duty (‘NJD’ for short) vacancies, reported on 03.10.2018. 7. The learned Senior Government Pleader has submitted that four NJD vacancies were actually reported by the appointing authority to the PSC on 03.10.2018, which is before the expiry of the rank list on 07.11.2020 and that one such NJD vacancy has arisen before 09.05.2018 and the PSC has made advice as against all the four NJD vacancies and appointment orders have also been issued by the appointing authority vide proceedings dated 04.10.2021, whereby all the four candidates advised to the four NJD vacancies have been duly appointed. 8. It is asserted by the respondents that no substantive vacancies, which have arisen on or before 09.05.2018 and which were reported before 07.11.2020, have been kept pending for advice. 9. Faced with this situation, the review petitioner has, now, raised a new factual plea that four available vacancies, which have arisen before 09.05.2018, were not reported by the appointing authority to the PSC before the expiry of the rank list on 07.11.2020 and that, therefore the said action on the part of the appointing authority in not reporting such substantive vacancies R.P. No.795 of 2022 5 is an illegality and that, this Court may interfere in the matter. 10. After hearing both sides, we are afraid that, we are not in a position to countenance the said plea of the review petitioner. It is well settled that, going by the mandatory provisions of Rule 13 & 14 of the Kerala Public Service Commission (Rules of Procedure), the PSC will get competence to make advice to vacancies reported by the appointing authority only if such vacancies are reported by the appointing authority to the PSC before the expiry of the rank list. 11. The said legal position does not require citation of any case laws on the point as it is too well settled. 12. According to the review petitioner, there were four substantive vacancies which have actually arisen before 09.05.2018 but for no fault of the candidates the appointing authorities had not reported those vacancies to the PSC before the expiry of the rank list on 07.11.2020, as they were misguided by the directives in the ban order dated 09.05.2018. 13. Assuming that the abovesaid factual plea is fully correct the same cannot be a basis for this Court to direct advice of candidates, like the petitioner, included in a time expired rank list R.P. No.795 of 2022 6 and that too as against the vacancies which admittedly have not been reported by the appointing authority to the PSC before the expiry of the rank list. Moreover, the respondents have strongly denied the afore new factual pleas. Hence, we are of the view that no grounds have been made out for warranting invocation of the judicial review remedy. In other words, the impugned judgment does not judicial review suffer from any error apparent on the face of the record and no other grounds for review are also made out. With these observations and directions the above review petition will stand dismissed. Sd/- ## **ALEXANDER THOMAS,** **JUDGE** Sd/- **VIJU ABRAHAM,** **JUDGE** Skk//18042023 R.P. No.795 of 2022 7 ## **`APPENDIX OF RP NO.795 OF 2022`** ``` PETITIONER'S ANNEXURES :- ``` ``` ANNEXURE A1CERTIFIED COPY OF THE JUDGMENT IN OP (KAT) NO.350/2022 DATED 28/02/2022 ``` ## **`RESPONDENTS' ANNEXURES`** `:-` ``` NIL ```