## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE V.G.ARUN**
**FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943**
## **WP(C) NO. 15017 OF 2021**
## **PETITIONER/S:**
1 RASHEEDA.T.S AGED 42 YEARS D/O. LATE T.A MOHAMMAD SHAFI, RESIDING AT ERIYAD, KODUNGALLUR THRISSUR, 680 666 (REGISTRATION NO. 113956 AND RANK NO. 20) 2 BHAVYA K AGED 40 YEARS, D/O. C. KUNJIRAMAN, RESIDING AT PONNATH HOUSE, RAPPAI, PUDUKKAD P.O, THRISSUR 680 301(REGISTRATION NO. 115190 AND RANK NO 317) 3 HIMA K.V AGED 39 YEARS, D/O. K.R VENU, RESIDING AT MURIYAD, IRINJALAKUDA, THRISSUR 680 683 (REGISTRATION NO. 115073 AND RANK NO. 318) 4 VARSHA E.S AGED 29 YEARS, D/O. SURENDRAN E.V, ERIYAKADAN HOUSE, NANDIPULAM P.O, THRISSUR 680 312 (REGISTRATION NO. 116566 AND RANK NO. 435) BY ADVS. S.SABARINADH INDULEKHA JOSEPH
## **RESPONDENT/S:**
1 STATE OF KERALA REPRESENTED THROUGH ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 KERALA PUBLIC SERVICE COMMISSION THULASI HILLS, PATTOM PALACE P.O, THIRUVANANTHAPURAM 695 004 REPRESENTED BY ITS SECRETARY BY ADV SHRI.P.C.SASIDHARAN, SC, KPSC
## **OTHER PRESENT:**
GP VENUGOPAL V
## **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD**
**ON 17.02.2022, THE COURT ON 04.03.2022 DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
Dated this the 04[th] day of March, 2022
The petitioners had applied for the post of Assistant Salesman, Thrissur (Category 222/2015) in Kerala State Civil Supplies Corporation Limited, pursuant to Ext.P1 notification of the Public Service Commission (PSC). They are included in Ext.P2 rank list at rank Nos.20 (Muslim Supplementary list), 317, 318 and 435 respectively. As per the averments in the writ petition, no advice was made from Ext.P2 rank list between the period 05.08.2018 to 09.05.2019.
A little while later, the pandemic struck and a nation wide lock down was imposed on 24.03.2020, bringing all activities, including appointment of rank listed candidates, to a standstill. Taking this unprecedented situation into consideration, the validity period of the rank lists, due to expire between 20.3.2020 and 18.06.2020 was
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extended for a period of three months by Ext.P4 order. As revealed from Ext.P4, the reason for extending the rank list was the inability of various Government offices to report vacancies on time. As the situation persisted, the Government recommended for extending the validity period of rank lists, that were to expire between 03.02.2021 to 02.08.2021 up to 03.08.2021,or as per the decisions of the PSC. Accordingly, the Commission extended the validity period of the ranked lists that were to expire between 05.02.2021 to 03.08.2021, up to 04.08.2021. The petitioners' grievance is that the benefit of extension, insofar as Ext.P2 rank list is concerned, is only for 1½ months, as, even otherwise, the list was valid up to 19.06.2021. On the contrary, the rank lists that were to expire on 05.02.2021 or immediately thereafter, got the benefit of extension by almost 6 months. The petitioners therefore submitted Ext.P8
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representation, seeking the PSC to extend the validity of Ext.P2 rank list by a period of one year from 04.08.2021, exercising its powers under Rule 40 and proviso 5 of Rule 13 of the Public Service Commission Rules of Procedure. The respondents having failed to consider their request, petitioners have approached this Court seeking the following reliefs;
_“i. Declare that the impact of Covid 19 situation upon Exhibit P2 Rank list is an extraordinary circumstance, warranting interference under Rule 40 and 5[th] proviso of Rule 13 of PSC Rules; and_
_ii. Declare that, the period of extension of Rank Lists on the basis of Covid 19 pandemic must be extended equally to all Rank holders without any discrimination and therefore petitioners are also entitled for an extension of 6½ months,_ _**and further**_
_iii. Declare that, Exhibit P2 Rank List, shall remain valid for a period of 12 months from 04.08.2021, in light of revelations in Exhibit P3, P4 & P5;_ _**and**_
_iv. Issue a writ, order or direction in the nature of Mandamus directing the 2[nd] respondent to issue appropriate extension orders for Exhibit P2 Rank List in tune with the above declarations, within a time frame before/dehors the expiry of Exhibit P2 Rank list.”_
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2. Heard Adv.S.Sabarinadh for the
petitioners, Adv.P.C.Sasidharan for the Public Service Commission and Government Pleader V.Venugopal for the State.
3. Learned Counsel for the petitioners submitted that, in spite of the process of selection to the post of Assistant Salesman having commenced on 10.08.2015 with the publication of Ext.P1 notification, Ext.P2 ranked list was published only on 19.06.2018, two years and nine months later. Even after publication of the ranked list, no advice was made for a period of 9 months between 05.8.2018 and 09.05.2019.
Therefore, technically, Ext.P2 ranked list was
inactive for 9 months. Adding to the woes of the petitioners, nation wide lock down was imposed on 24.03.2020, bringing all activities to a
standstill. Even after the lock down, reporting of vacancies from various offices and consequent advice from the PSC was minimal. It was in such
## W.P.(C) No.15017 of 2021
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circumstances that Ext.P4 was issued, extending the validity of the ranked list up to 18.06.2020. Thereafter, Ext.P5 was issued, extending the validity period of all ranked lists, expiring between 05.02.2021 to 03.08.2021, up to 04.08.2021. As the validity of Ext.P2 ranked list was up to 19.06.2021, the extension, as far as the petitioners are concerned, is only by 45 days. As such, there is clear discrimination between the petitioners and candidates included in the ranked lists that were to expire on, or immediately after, 05.02.2021. As per the 5[th] proviso to Rule 13 of the Kerala Public Service Commission Rules of Procedure, the minimum period prescribed for extension is 3 months and the maximum, 1½ years. Further, considering that the rank list remained inactive for 9 months, the said period also should be tagged along with the minimum period stipulated in the 5[th] proviso to Rule 13. If so, the validity period of Ext.P2
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rank list is bound to be extended by at least one year. In support of the contention, reliance is placed on the decision in _**Gopakumar M and others**_
_**v. State of Kerala and another [ILR 2017 (4)**_
_**Ker.500]**_ , wherein, a learned Single Judge held that, when the PSC chooses to extend the validity period of ranked lists for six months, there cannot be any selective extension or selective exclusion. Again in _**Roshini S.S. and another v.**_
_**KPSC and another (judgment in W.P.(C) No.18673/2017 dated 26.07.2017)**_ , it is held that when the 5[th] proviso has fixed a minimum period of three months by which the rank list is to be extended and when there is a recommendation from the Government for extending the validity period of rank list, the Commission should have extended the period in accordance with the Rules.
4. Learned Standing Counsel for the Public Service Commission submitted that the mandate of
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proviso 5 to Rule 13 stands complied with, since the period of validity of all rank lists were extended by six months under Ext.P5. According to the Standing Counsel, the proviso does not mandate that the period should be separately extended for each rank list. It is submitted that the question was considered by the KAT in O.A No.1246 of 2021 and connected cases. Therein, after exhaustive consideration, it is held that the decision of the PSC, invoking the 5[th] proviso to Rule 13 of the Rules of Procedure is exclusively within the domain of its
administrative decision and cannot be interfered with in exercise of the power of judicial review. It is pointed out that the decision of the KAT is under challenge before a Division Bench of this Court.
5. In order to deal with the contention in the writ petition, it is necessary to have a careful scrutiny of Rule 13 of the KPSC Rules of
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## Procedure extracted here under;
_“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 Courses 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 selections have to be made_
## W.P.(C) No.15017 of 2021
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_annually in accordance with the instructions of the Government of India issued from time to time. For these 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 wherever 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 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 candidate 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_
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_or till at least one candidate is advised from the list whichever is earlier:_
_Provided further that if the Commission is satisfied of the existence 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 extraordinary 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 List.”_
A reading of the Rule would show that the validity period of a ranked list is one year from the date on which it was brought into force, but,
## W.P.(C) No.15017 of 2021
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the list shall continue to be in force till 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. The Commission is empowered to take steps for preparation of a new rank list even before expiry of the period of one year of the existing rank list. But, the subsequent rank list shall be brought into force only after expiry of the period of one year of the existing rank list. As per proviso 4 to Rule 13, ranked lists from which no candidates were advised during the one year period shall be kept in force till the expiry of three years and if no candidates were advised from the ranked list till the expiry of the three years, the duration of the rank list shall be extended for a further period of one year or till at least one candidate is advised from the list, whichever is earlier. The 5[th] proviso is intended to deal with situations when, due to general ban on the
## W.P.(C) No.15017 of 2021
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reporting of the vacancies or any other
circumstances or extraordinary situation hampers
the process of reporting of vacancies by the appointing authorities. The proviso empowers the Commission to keep alive the rank list which are normally due to expire during such period, subject to a minimum period of three months or such further periods not exceeding 1½ years in the aggregate.
6. It may be pertinent to note the clear
distinction between the terms used in the 4[th] and
5[th] proviso to Rule 13. In the 4[th] proviso, the terminology used is 'the list shall be kept in force' and 'duration of the rank list shall be extended', whereas in the 5[th] proviso, it is 'the
Commission shall have the power to keep alive the
rank list'. This conscious difference in
terminology would indicate that under the 4[th]
proviso, the Commission is bound to extend the period of validity of the rank list, while under
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the 5[th] proviso also, the Commission is vested with the discretion to keep alive the rank list. Even though the term 'shall' is used in the 5[th] proviso. The legal position that, under certain circumstances, the word 'shall' can be construed as 'may' and vice-versa, is no more _res integra_ .
In _**Mohan Singh v. International Airport Authority**_
_**of India [1997 (9) SCC 132]**_ , this question was
considered and answered as under;
_“The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word ‘shall’ or ‘may’ depends on conferment of power. In the present context, ‘may’ does not always mean may. May is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes duty to exercise. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the_
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_duty. In Craies on Statute Law (7th Edn.), it is stated that the court will, as a general rule, presume that the appropriate remedy by common law or mandamus for action was intended to apply. General rule of law is that where a general obligation is created by statute and statutory remedy is provided for violation, statutory remedy is mandatory. The scope and language of the statute and consideration of policy at times may, however, create exception showing that the legislature did not intend a remedy (generality) to be exclusive. Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks to achieve. Therefore, it is necessary to ascertain the intention. The word ‘shall’ is not always decisive. Regard must be had to the context, subject-matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analysing the_
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_whole scope of the statute or section or a phrase under consideration. As stated earlier, the question as to whether the statute is mandatory or directory depends upon the intent of the legislature and not always upon the language in which the intent is couched. The meaning and intention of the legislature would govern design and purpose the Act seeks to achieve. In Sutherland's Statutory Construction, (3rd Edn.) Vol. 1 at p. 81 in para 316, it is stated that although the problem of mandatory and directory legislation is a hazard to all governmental activity, it is peculiarly hazardous to administrative agencies because the validity of their action depends upon exercise of authority in accordance with their charter of existence — the statute. If the directions of the statute are mandatory, then strict compliance with the statutory terms is essential to the validity of administrative action. But if the language of the statute is directory only, then variation from its direction does not invalidate the administrative action. Conversely, if the statutory direction is discretionary only, it may not provide an adequate standard for legislative action_
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_and the delegation. In Crawford on the Construction of Statutes, at p. 516, it is stated that:_
_“The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other….”_
7. It is true that in _**Roshini S.S.** (supra)_
the learned Single Judge of this Court has held that while extending the rank list invoking the power under 5[th] proviso Rule 13, the PSC was bound to extend it in accordance with the Rules and was bound to have extended each notification by a minimum period of three months. But the position stands clarified by the decision of the Division Bench in _**Subeena S and others v State of Kerala and others [2019 (4) KHC 298],**_ wherein it is held
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that the statutory provision under the 5[th] proviso Rule 13 is only a source of power to keep alive a rank list which is due to expire on certain contingency and is not coupled with any mandatory duty to so exercise it on every occasion. In this context, it may also be worthwhile to consider the decision of the KAT rendered in O.A.No.1246 of 2021 under identical circumstances. After elaborate consideration, the Tribunal held as under;
_“48. It is also pertinent to note that the term used is to keep alive the ranked lists." (emphasis supplied) and not ranked list. A reading of Rule 13 and the provisos, would denote that wherever the rules deals with issues particular to a ranked list the term 'ranked list is used as in the 3[rd] proviso and the 4[th] proviso. The 3[rd] proviso deals with the power of the Commission to prepare a new ranked list even before the expiry of one year of a ranked list and provides that such list would be brought into force only after one year of the existing ranked list. The 4[th] proviso deals with a ranked list from which no candidate is advised during the three year period, then_
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## W.P.(C) No.15017 of 2021
_the duration of such ranked list would be extended by the Commission for a further period of one year or till atleast one candidate was advised from the list, whichever was earlier. The usage of term "ranked lists” in the 5[th] proviso itself denotes that the extension by the period as decided by the Public Service Commission would be common to all the ranked lists which would expire during the above period._
_49. Moreover, an extension for a period of three months for each individual ranked list would militate against the decision by the Public Service Commission that the effect of the ban, the non-reporting/delay in reporting could be got over by the extension for a certain period. The extension in such case would go beyond the period so decided by the Public Service Commission, which would be self-contradictory. This is not the intention of the provision.”_
Herein also, the validity of the ranked lists, that were due to expire between 05.02.2021 to 03.08.2021, was extended up to 04.08.2021. Going by the wording in the 5[th] proviso to Rule 13, the purpose of such extension is to keep alive the rank list that were to expire during the period
## W.P.(C) No.15017 of 2021
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when, reporting of vacancies by the appointing authorities is prevented or restricted or delayed. The extension being to tide over the crisis period, there cannot be any insistence that each rank list expiring during such period should individually be extended by at least three months. Such insistence would militate against the very objective of the provision. For arriving at the above conclusion, I am guided by the following observations of the Division Bench's judgment in W.A.No.1865 of 2017;
_“35. Though we have considered the cases in common as above, as regards W.A.No.1865/2017 is concerned, we would require to record a few words specifically with respect to it because the facts contained therein are slightly different from the others. In this case, the rank list was brought into effect on 15.06.2014 and it was to expire only on 14.06.2017. Therefore, even if the benefit of Ext.P18 extension is granted to this rank list, it would get the benefit only for a period of 14 or 15 days._
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_Sri.Saju John, learned Counsel appearing for the appellants says that this is wholly arbitrary because, going by provisions to proviso 3 to Rule 15 of the Rules, the extension to be given to a rank list must be a minimum of three months. The learned Single Judge appears to have been accepted this contention and to have allowed W.P.(C) No.18763/2017, granting a further extension of three months to the said rank list. We notice that the PSC has also filed W.A.No.1928/2017 against the very same judgment, wherein their contention is that the learned Single Judge has erred in granting such an extension._
_36. We have considered the dialectal submissions of the learned Standing Counsel and Sri.Saju John appearing for the appellants in this case. We think that since all the rank lists in Kerala have been extended only until 30.06.2017 though Ext.P18 and further, since on account of our observations herein and the conclusions of the learned Single Judge and the learned Tribunal in the judgments and orders impugned before us, the rank lists which had obtained the first benefit of extension would also stand extended only until 30.06.2017, it would not be proper on our part, even assuming that the proviso 5 to Rule_
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_13 speaks otherwise, to grant one rank list alone a singular benefit which will not be available to any others. For such reason, we deem it appropriate to vacate that direction of the learned Single Judge in W.P.(C) No.18673/2017, to the extent to which benefit is granted to the rank list involved therein for an extension of three months beyond 30.06.2017. Consequently, W.A.No.1928/2017_
_filed by the PSC would also stand allowed to that extent.”_
It is also pertinent to note that the prayer
in the writ petition is for a declaration that Ext.P2 rank list shall remain valid for 12 months from 04.08.2021 and for consequential directions. No valid ground for seeking such relief is made out.
For the aforementioned reasons, the writ
petition is dismissed.
sd/-
## **V.G.ARUN JUDGE**
Scl/
W.P.(C) No.15017 of 2021
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## **APPENDIX OF WP(C) 15017/2021**
|PETITIONER|EXHIBITS|
|---|---|
|Exhibit P1|A TRUE PHOTOCOPY OF THE NOTIFICATION,|
||PUBLISHED IN GAZETTE DATED 10-08-2015|
||FOR RECRUITMENT IN CATEGORY NO.|
||222/2015 FOR ASSISTANT SALESMAN IN|
||KEERALA STATE CIVIL SUPPLIES|
||CORPORATION LIMITED.|
|Exhibit P2|A TRUE PHOTOCOPY OF THE RELEVANT|
||EXTRACT OF RANK LIST NO. 425/2018/DOR|
||DATED 19-06-2018 IN CATEGORY NO.|
||222/2015 FOR ASSISTANT SALESMAN IN|
||KEERALA STATE CIVIL SUPPLIES|
||CORPORATION LIMITED.|
|Exhibit P3|A TRUE PHOTOCOPY OF THE REPLY BY NO. R|
||IV(4) 3919/15 DATED 13-02-2020 ISSUED|
||BY STATE PUBLIC INFORMATION OFFICER,|
||KERALA PUBLIC SERVICE COMMISSION|
||DISTRICT OFFICE, THRISSUR|
|Exhibit P4|A TRUE PHOTOCOPY OF NOTIFICATION BY|
||NO. AV(2) 4182/GW DATED 30-03-2020|
||ISSUED BY 2ND RESPONDENT.|
|Exhibit P5|A TRUE PHOTOCOPY OF THE NOTIFICATION|
||BY NO. A5-2/29/2020-KPSC DATED 05-02-|
||2021 ISSUED BY SECRETARY, KERALA|
||PUBLIC SERVICE COMMISSION.|
|Exhibit P6|A TRUE PHOTOCOPY OF THE APPOINTMENT|
||CHART PREPARED BY THE UNDER SECRETARY,|
||KERALA PUBLIC SERVICE COMMISSION,|
||DISTRICT OFFICE, THRISSUR IN ITS|
||ADVICE DATED 08-07-2021 FOR|
||APPOINTMENT TO THE POST OF ASSISTANT|
||SALESMAN, IN KERALA STATE CIVIL|
||SUPPLIES CORPORATION LIMITED-THRISSUR|
||DISTRICT|
|Exhibit P7|A TRUE PHOTOCOPY OF THE APPOINTMENT|
||CHART PREPARED BY UNDER SECRETARY,|
||KERALA PUBLIC SERVICE COMMISSION,|
||DISTRICT OFFICE, THRISSUR, SHOWING|
||TOTAL ADVICE IN THE PREVIOUS RANK LIST|
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## W.P.(C) No.15017 of 2021
||WITH EFFECT FROM 31-12-2016 FOR|
|---|---|
||APPOINTMENT TO THE POST OF ASSISTANT|
||SALESMAN, THRISSUR.|
|Exhibit P8|A TRUE PHOTOCOPY OF THE REPRESENTATION|
||DATED 22-07-2021 SUBMITTED BEFORE THE|
||SECRETARY OF KERALA STATE PUBLIC|
||SERVICE COMMISSION BY THE PETITIONERS|
|Exhibit P9|A TRUE PHOTOCOPY OF THE EMAIL DATED|
||23-07-2021 FORWARDING REPRESENTATION|
||DATED 22-07-2021 SUBMITTED BEFORE THE|
||SECRETARY OF KERALA STATE PUBLIC|
||SERVICE COMMISSION BY THE PETITIONERS.|
|Exhibit P10|A TRUE PHOTOCOPY OF REPLY TO RTI|
||APPLICATION BY NO. PIO.7995/202 DATED|
||13-05-2020 (INCLUDING THE RELEVANT|
||ADDENDUM) ISSUED BY THE KERALA STATE|
||CIVIL SUPPLIES CORPORATION LTD, RIGHT|
||TO INFORMATION ACT.|
|Exhibit P11|A TRUE PHOTOCOPY OF THE JUDGMENT OF|
||THE HON'BLE SUPREME COURT IN DEEPA|
||KEYEES V.KSEB (2007(6) SCC 194)|
|Exhibit P12|A TRUE PHOTOCOPY OF THE JUDGMENT OF|
||THE HON'BLE SUPREME COURT IN|
||I.THULASEEDHARAN V. KERALA STATE|
||PUBLIC SERVICE COMMISSION, TRIVANDRUM|
||AND OTHERS (2007(2) KHC 943)|
|Exhibit P13|A TRUE PHOTOCOPY OF NO.GOPAKUMAR N.AND|
||ORS V. STATE OF KERALA AND ANR|
||REPORTED IN 2017 KHC 544|
|Exhibit P14|A TRUE PHOTOCOPY OF THE JUDGMENT OF|
||THIS HON'BLE COURT IN ROSHINI|
||S.S.V.KPSC (WPC NO.18673/2017) DATED|
||26/7/2017|
|Exhibit P15|A TRUE PHOTOCOPY OF SUBINA S AND ORS|
||V. STATE OF KERALA AND ORS REPORTED IN|
||2019 (3) KLT 735|
|Exhibit P16|A TRUE PHOTOCOPY OF JUDGMENT IN O.P.|
||(KAT) NO. 345/2019 DATED 30/8/2019|