PRADEEP.T. (S/O THANKAPPAN) v STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930** ## **OP.No. 4555 of 2001(P)** **----------------------------------** **PETITIONER:** - **--------------------** ## **PRADEEP.T., (S/O. THANKAPPAN), THEKKEVILVEEDU, YEROOR (PO), KOLLAM, KOLLAM DISTRICT.** **BY ADV. SRI.T.K.MARTHANDAN UNNITHAN** **RESPONDENTS:** - **-------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, TRIVANDRUM.** **2. THE PRINCIPAL SECRETARY, HIGHER EDUCATION, GOVERNMENT OF KERALA, TRIVANDRUM.** **3. THE DIRECTOR OF TECHNICAL EDUCATION, DIRECTORATE OF TECHNICAL EDUCATION, TRIVANDRUM.** **4. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, TRIVANDRUM.** **BY GOVERNMENT PLEADER SRI. SANDESH RAJA R4 BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/022008, THE COURT ON 9/04/2008 DELIVERED THE FOLLOWING:** _Kss_ ## **ORDER ON C.M.P.NO.7595/2001 IN O.P.NO.4555/2001 P DISMISSED** **9/04/2008 SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF NOTIFICATION NO.77/98/SSIV. IN PART I GAZETTE DTD. 22/09/1998. EXT.P2: COPY OF GOVERNMENT ORDER G.O.(MS) 2/2000/H.EDN. DTD.11/1/2000. EXT.P3: COPY OF COMMUNICATION NO.L1/43876/2000 DTD. 17/01/2001 ISSUED BY THE 3RD RESPONDENT. EXT.P4: COPY OF ORDER G.O.(P) NO.994/2000/FIN. DTD. 30/06/2000 ISSUED BY GOVERNMENT OF KERALA. EXT.P5: COPY OF REPRESENTATION DTD. 22/01/2001 SUBMITTED BY THE PETITIONER BEFORE THE CHIEF MINISTER OF KERALA. EXT.P6: COPY OF GOVERNMENT ORDER DTD. 11/06/2001 ISSUED BY THE GOVERNMENT OF KERALA.** **/TRUE COPY/ P.S.TO JUDGE** _Kss_ ## **P.N.Ravindran, J. ================ O.P.No.4555 of 2001** ## **===============** ## **Dated this the 9[th] day of April, 2008.** ## **JUDGMENT** The Kerala Public Service Commission, hereinafter referred to as the "Commission" for short, had more than a decade back, invited applications for appointment to the post of Lecturer in Applied Arts (Design) in the Technical Education Department. The petitioner applied, was selected and is included in Ext.P1 ranked list which came into force on 18.3.1998. The petitioner who belongs to the Ezhava community is ranked first in the supplementary list of Ezhava candidates Ext.P1. 2. There are three Fine Arts Colleges in the State of Kerala, namely, College of Fine Arts, Thiruvananthapuram; Raja Ravi Varma College of Fine Arts, Mavelikkara and College of Fine Arts, Thrissur. It is stated that the four year degree course in Fine Arts was introduced in the College of Fine Arts, Thiruvananthapuram decades back while in the other two Colleges, the course commenced in three disciplines, viz., OP 4555/01 -: 2 :- Painting, Sculpture and Applied Arts during the academic year 2000-2001. By Ext.P2 government order dated 11.1.2000, two posts each of Lecturer in Painting, Lecturer in Sculpture, Lecturer in Applied Arts, Lecturer in Graphics and Lecturer in History of Arts & Aesthetics and L.D. Clerk were sanctioned in the Raja Ravi Varma College of Fine Arts, Mavelikkara and College of Fine Arts, Thrissur. After the courses commenced during the academic year 2000-2001, by Ext.P3 letter dated 17.1.2001 the Director of Technical Education requested the State Government to sanction additional posts in the said Colleges for the commencement of the second year of the course. The State government had in the meanwhile issued Ext.P4 government order imposing a ban of creation of new posts. The petitioner thereupon filed Ext.P5 representation addressed to the Hon'ble the Chief Minister pointing out that he has been included in the ranked list for the post of Lecturer in Applied Arts (Design), that the ranked list will cease to be in force on 18.3.2001, that in view of the ban imposed by Ext.P4, the additional posts recommended by the Director of Technical Education have not been sanctioned in the Raja Ravi Varma College of Fine Arts, Mavelikkara and College of OP 4555/01 -: 3 :- Fine Arts, Thrissur, that he has completed the age of 35 years and has become over aged for appointment in government service and therefore steps may be taken to sanction the posts recommended in Ext.P3 or to extend the validity of Ext.P1 ranked list. Thereafter this original petition was filed seeking the following reliefs: "a) a writ of mandamus or other appropriate writ, direction or order directing the respondents 1 and 2 to sanction the required number of posts for the IInd year course of the 4 year degree course which was already started in Raja Ravi Varma College of Fine Arts and College of Fine Arts, Thrissur without any further delay. b) a writ of mandamus or other appropriate writ, direction or order directing respondents 1, 2 and 4 to extend the period of validity of Ext.P1 Rank list till appointments are made to the posts of Lecturer in Applied Arts (Design) for commencing the IInd year of the 4 year Degree Course. c) a declaration to the effect that the ban referred to in the measure (i) as item No.(i) in the "Measures for non development expenditure control" in Ext.P4 does not take in sanctioning of posts for the 4 year Degree Course which has already been started OP 4555/01 -: 4 :- before Ext.P4 was issued. d) a writ of mandamus or other appropriate writ, direction or order directing the 1st respondent to dispose of Ext.P5 representation submitted by the petitioner without any delay." 3. On behalf of the fourth respondent, a counter affidavit has been filed contending inter alia that during the currency of Ext.P1 ranked list which came in force on 18.3.1998, six vacancies were reported and six candidates were advised. It is stated that the ranked list ceased to be in force on 17.4.2001 and that in terms of the interim order passed by this Court in O.P.No.9135 of 2001 filed by Sri. K.N.Jayaprakash (ranked fifth in Ext.P1), the Director of Technical Education had reported one vacancy of Lecturer in Applied Arts (Design) with a request not to advise any candidate as there is no vacancy to accommodate anyone. It is further stated in the counter affidavit that though the petitioner is assigned rank No.1 in the supplementary list of Ezhava candidates, he was not advised for appointment as his turn did not arise while advising candidates against the vacancies reported during the period when the ranked list was in force. As regards the petitioner's prayer for extending the validity of the OP 4555/01 -: 5 :- list, it is stated that it is not tenable in view of Rule 14 of Kerala Public Service Commission Rules of Procedure. 4. The petitioner has filed a reply affidavit contending inter alia that the ban on appointments imposed by the State Government by Ext.P4 continued by Ext.P6 government order and hence, no appointment could have been made from Ext.P1 ranked list during the period from 30.6.2000 till December, 2004 and even thereafter. It is also contended that in view of the ban imposed, the validity of the list ought to have been extended. The petitioner has also contended in the reply affidavit that though there were six vacancies, only five candidates were appointed and that as against the sixth vacancy, the petitioner being the next candidate was entitled to be advised and appointed according to the rules of reservation. The petitioner has also filed I.A.No.2506 of 2008 on 18.2.2008, seeking an amendment of the original petition by incorporating the following prayer: "Prayer (d)(a): to issue a writ of mandamus or other appropriate writ, direction or order directing the 4th respondent to advise the petitioner for OP 4555/01 -: 6 :- appointment as Lecturer in Fine Arts (Design) in Fine Arts College and to direct respondents 1 to 3 to appoint the petitioner as Lecturer in Fine Arts (Design) without any further delay." The petitioner has, in the affidavit filed in support of I.A.No.2506 of 2008 averred that against the six vacancies reported by the Director of Technical Education, only five candidates, namely, Smt.Lekha, Sri.Suresh, Sri.Sivarajan, Sri.Premachandran and Sri.Ashokan were advised, that Sri. Ashokan did not join service, that in that vacancy, Sri.Jayachandran was advised and appointed and that though six vacancies were reported, only five candidates were appointed. 5. I heard Sri.T.K.M.Unnithan, the learned counsel appearing for the petitioner, Sri.K.Sandesh Raja, the learned Government Pleader appearing for respondents 1 to 3 and Sri.Alexander Thomas, the learned Standing Counsel appearing for the Kerala Public Service Commission. The learned counsel for the petitioner contended that as six vacancies were reported during the period when the ranked list was in force and only five candidates were appointed, the petitioner being the next OP 4555/01 -: 7 :- candidate eligible for appointment as per the turn, is entitled to be advised and appointed notwithstanding the expiry of the ranked list. The learned counsel submitted that as six vacancies were reported and only five candidates joined duty, one vacancy reported was not filled up and therefore, the petitioner is entitled to be appointed against the said vacancy. The learned counsel for the petitioner contended that though the ranked list ceased to be in force, the petitioner is entitled to be advised and appointed and that the respondents take shelter on the plea that long years have passed after the list ceased to be in force. The learned counsel relying on the decision of this Court in **Baiju Kumar** v. **D.E.O.** - 2003(3) K.L.T. 240 contended that the respondents alone knew the number of vacancies that existed, the number of candidates advised, the details regarding the candidates who did not join duty and the vacancies that remained unfilled when the list ceased to be in force. Particular reference was made to paragraph 7 of the aforesaid decision to contend that as these are matters within the special knowledge of the respondents and as the respondents have not denied the averment in the reply affidavit that only five candidates were appointed against six OP 4555/01 -: 8 :- vacancies, the petitioner is entitled to be appointed against the sixth vacancy. Per contra, the learned Standing Counsel for the Kerala Public Service Commission contended that as against six vacancies reported during the currency of the ranked list five candidates were advised and that as the petitioner's turn did not arise when the ranked list was in force, he is not entitled to any relief in this original petition. The learned Standing Counsel for the Kerala Public Service Commission also contended relying on the decision of a Division Bench of this court in **Kerala Public Service Commission** v. **Shanil Kumar** - 2002(1)K.L.T. 604 that even in the case of a non-joining duty vacancy, the Commission cannot advise any candidate after the expiry of the ranked list unless the requisition is received before the ranked list expired. In other words, the contention of the learned Standing Counsel for the Kerala Public Service Commission was that if any one among the six candidates advised from Ext.P1 ranked list did not join duty, unless the said vacancy was also reported while the ranked list was in force, the Commission would not be in a position to know whether the person advised by it has joined duty or not and that unless and until it is done, as far as the OP 4555/01 -: 9 :- Commission is concerned, the vacancy does not exist. 6. I have considered the rival contentions. It is common case that O.P.No.9135 of 2001 filed by Sri.K.N.Jayaprakash, ranked fifth in Ext.P1 ranked list was dismissed by this Court by judgment delivered on 29.6.2006 holding that in view of the expiry of the ranked list, nothing survives for adjudication in the writ petition. From the original petition, it is clear that the case originally set out by the petitioner is that in view of the ban on appointments imposed by the State Government, appointments cannot be made from Ext.P1 ranked list to the post of Lecturer in Applied Arts (Design) notwithstanding the availability of vacancies in the Raja Ravi Varma College of Fine Arts, Mavelikkara and College of Fine Arts, Thrissur. The petitioner had no case in the original petition or in Ext.P5 representation that notwithstanding the availability of vacancies, he was not advised though the vacancy was reported and going by the turn, he was eligible to be advised for appointment. The main grievance in the original petition was regarding the ban on appointments and the reliefs sought also related to the sanctioning of posts in the Raja Ravi Varma College of Fine Arts, OP 4555/01 -: 10 :- Mavelikkara and College of Fine Arts, Thrissur and the extension of the life of the list till appointments are made to the post of Lecturer in the said Colleges. It was only in the reply affidavit filed on 29.8.2005 long after the ranked list ceased to be in force that the petitioner came forward with the plea that as against six vacancies reported, only five candidates were appointed from the ranked list. The case set out in the reply affidavit was that even though the ranked list has ceased to be in force, as six vacancies were reported to the Commission and only five candidates were appointed from the ranked list, the petitioner is entitled to be advised for appointment. In I.A.No.2506 of 2008 filed on 18.2.2008, the petitioner's case is that as against six vacancies only five candidates were advised, that even among the said five, one person did not join duty and therefore another candidate was advised. In I.A.No.2506 of 2008, the petitioner also prayed that the original petition may be amended by incorporating a prayer to direct the fourth respondent to advise him for appointment as Lecturer in Applied Arts (Design) and to direct respondents 1 to 3 to appoint him without any further delay. The said application was filed only on 18.2.2008, the day on which this original OP 4555/01 -: 11 :- petition was finally heard. 7. In my opinion, on the materials available in the case on hand, it is not possible to hold that the petitioner was the next candidate eligible for advice from Ext.P1 ranked list even if six vacancies had in fact been reported and only five candidates had been advised. There is total dearth of material in the original petition to adjudicate on the said aspect. As noticed above, the original petition was filed aggrieved by the delay on the part of the Government in sanctioning the posts of Lecturer in the Raja Ravi Varma College of Fine Arts, Mavelikkara and College of Fine Arts, Thrissur and challenging the ban on appointments imposed by the State Government. The petitioner had no case in the original petition that thought six vacancies have been reported only five candidates were advised. The Kerala Public Service Commission therefore did not get an opportunity to ascertain the facts and make its submissions. The Kerala Public Service Commission filed its counter affidavit on 27.5.2002. It was more than three years thereafter that the petitioner filed a reply affidavit raising a new plea that though as stated in the counter affidavit, six vacancies were reported, only five candidates were OP 4555/01 -: 12 :- appointed from the ranked list. The ranked list ceased to be in force long before the counter affidavit was filed by the Kerala Public Service Commission. In the application for amendment, I.A.No.2506 of 2008, the petitioner has chosen to name the five candidates who were advised against six vacancies. The case put forward by the petitioner in the application for amendment filed belatedly on 18.2.2008 is at variance with the case set out in the original petition. It is nearly seven years after the list ceased to be in force that the petitioner has come forward with a new plea that though six vacancies were reported, only five candidates were advised. The petitioner cannot in my opinion, rely on the principles laid down by this Court in 2003(3) K.L.T. 240 (supra) to contend that as the respondents alone were in the know of things, it was for the respondents to produce the entire materials before this Court. The said contention cannot be accepted. Firstly unlike Rule 51B of Chapter XIV-A, of the Kerala Education Rules, a candidate included in the ranked list has no right to be appointed to the post. He has only a right to be considered for appointment subject to availability of vacancies. The Commission has stated that as against six vacancies, six candidates were OP 4555/01 -: 13 :- advised during the currency of the list. The list ceased to be in force on 17.3.2001. As rightly contended by the learned Standing Counsel for the Kerala Public Service Commission, even assuming that there was any non joining duty vacancy, unless that vacancy was reported to the Commission before the ranked list ceased to be in force, the petitioner cannot seek or be granted any relief. O.P.No.9135 of 2001 filed by a candidate whose name was included in the main list, was dismissed by this Court on the ground that in view of the expiry of the ranked list, nothing survives in the writ petition. 9. On an overall view of the facts and circumstances of the case, I am of the opinion that the petitioner is not entitled to any relief in this original petition. The ranked list concerned, namely, Ext.P1 ceased to be in force on 17.3.2001. Nearly 7 years have passed thereafter. It is only long afterwards that the petitioner has come forward with a plea regarding one non joining duty vacancy. In the absence of any cogent material, I find it difficult to accept the petitioner's contention in that regard. The petitioner has not succeeded in establishing that a non joining duty vacancy was reported to the Kerala Public Service OP 4555/01 -: 14 :- Commission before the ranked list ceased to be in force and that he was the next candidate eligible to be advised/appointed. In the result, I hold that the petitioner is not entitled to any relief in this original petition. The original petition accordingly fails and it is dismissed. No costs. P.N.Ravindran, Judge. ess 17/3