Saptha Stalin, Shilpa S.S., and Anju K.A. v. Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd. and Others

1 WPC 17663/2022 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946 ``` ``` WP(C) NO. 17663OF 2022 ``` ## **`PETITIONER/S:`** - **`1 SAPTHA STALIN, AGED 37 YEARS (RANK NO.2180) D/O.K.STALIN, RISHIKESHAM, PANGAL, PUTHUPPARIYARAM, PALAKKAD - 678 731.`** - **`2 SHILPA S.S., AGED 37 YEARS (RANK NO.2001) D/O.M.SASEENDRAN PILLAI, RESIDING AT VENJARAMOODU, THIRUVANANTHAPURAM - 695 607.`** - **`3 ANJU K.A., AGED 30 YEARS (RANK NO.2093), D/O.ASOKAN K.C., RESIDING AT 119 KALATHIPARAMBU, ARTHUNKAL, ALAPPUZHA - 688 530.`** ``` BY ADVS.S.SABARINADH INDULEKHA JOSEPH ``` ## **`RESPONDENT/S:`** ``` 1KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD., REPRESENTED THROUGH THE CHAIRMAN AND MANAGING DIRECTOR, BEVCO TOWER, PALAYAM, VIKAS BHAVAN P.O., TRIVANDRUM - 695 033. ``` - **`2 KERALA PUBLIC SERVICE COMMISSION THULASI HILLS, PATTAOM PALACE P.O., THIRUVANANTHAPURAM - 695 004 REPRESENTED BY ITS SECRETARY.`** 2 WPC 17663/2022 - **`3 SREEJA. R, D/O N.KRISHNAN KUTTY, RESIDING AT VAISNAVAM, KEERTHI NAGAR, VELLAYANI, NEMOM P.O., (RANK NO-2331)`** - **`4 JEEVA MUKUNDAN P.P. D/O MUKUNDAN PP, PUTHAN PURAYIL, VALIYA PARAMBIL, CHEVAYUR P.O., CALICUT- 673017 (RANK NO-2498)`** - **`5 SWEETY, D/O. SIDHARTHAN K.V., PUNARTHAM, OLLUR VARIYATHU PARAMBA P.O, KUTHIRAVATTAM, KOZHIKODE, 673016 (EZHAVA SUPPLEMENTARY RANK 1)`** - **`6 DEEPA V , D/O VASUDEVAN S, K R NIVAS, KOIKKAMOOLA, ALTHRAMOODU P.O, NAGAROOR-695102 (RANK NO-2333)`** - **`7 SANDHYA MOL. L, D/O KOCHU GOVINDHA PILLAI R, RADHAMANGALAM, ATTARIKAM, OMALLOOR P.O., PATHANAMTHITTA-689647 (RANK.NO.2376)`** - **`8 RAJI M , D/O MURALEEDHARAN V., KAITHAVANA VADAKKEVEEDU, ALAMCODE P.O, ATTINGAL-695102 (RANK NO. 2738)`** - **`9 RESMI.L, D/O GOPALA KRISHNAN NAIR K., GOKULAM, BGRA-45, INDIRA NAGAR, PEROORKADA P.O., THIRUVANANTHAPURAM (RANK NO. 2176)`** - **`10 REJITHRA D REJITHRA D, D/O DHANAPALAN P., DURGALAYAM, ANAYIL, VAKKOM P.O., VAKKOM, THIRUVANANTHAPURAM-695308 (RANK NO. 2181)`** - **`11 SOUMYA P.G., AGED 36 YEARS, D/O PRASANNAN S., SREEGOURY, PLAVILAKUZHY, MUDAPURAM P.O., CHIRAYINKEEZHU, THIRUVANANTHAPURAM (RANK NO. 2409)`** - **`12 NIVYA REGHUNATH, D/O P.K.REGHU, AMBHATTU, THALUNKAL KOOTTICKAL, KOTTAYAM, (RANK NO. 2853)`** - **`13 RAHUL RAGHAVAN, S/O V.RAGHAVAN, SREE SHYLAM, THODIYOOR NORTH P.O., KARUNAGAPPALLY, KOLLAM, (RANK NO. 318 SUPPLEMENTARY LIST)`** 3 WPC 17663/2022 ``` 14NYSREE M NYSREE M, D/O M.RAMACHANDRAN, SAYOOJYAM, PYKKAT HOUSE, MADAKKARA LINE, NADAKKAVE P.O., KOZHIKODE (RANK NO. 2130) ``` ``` ADDL.RESPONDENT NOS.3 TO 14 ARE IMPLEADED AS PER ORDER DATED 25.3.2024 IN IA.1/2023 IN WPC 17663/22. ``` ``` BY ADVS.NAVEEN T ``` ``` OTHER PRESENT: ``` ``` SC SRI. P. C SASIDHARAN, ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.5.2022, THE COURT ON 25.07.2024 DELIVERED THE FOLLOWING: ``` 4 WPC 17663/2022 ## **JUDGMENT** (Dated this the 25[th ] day of July 2024) Applications were invited for recruitment to the post of Lower Division Clerk (LDC) in the 1st respondent Kerala State Beverages (M&M) Corporation Ltd. (the Corporation) by the Kerala Public Service Commission (PSC) as per Ext.P1. The petitioners submitted applications, and a written examination was conducted on 26.10.2016, and a shortlist was published, followed by a Certificate Verification. A rank list was published on 3.6.2019, and the petitioners were included as rank holders in the Ext.P2 rank list. As the petitioners were not getting appointment orders, they filed an application under the Right to Information Act, before 1st respondent and obtained Ext.P3 to P5 replies. Since there were contradictory answers in all the replies, petitioners secured a copy of the Government 5 WPC 17663/2022 Order approving staff fixation in the 1st respondent and obtained Ext.P6 Government Order. 2. From Ext.P6, the petitioners came to know that there are anomalies and fraudulent backdoor appointments. The number of permanent posts of LDC in the BEVCO shows that daily wages occupy 375 and 498 permanent posts, and they are shown as vanishing categories for no reason. In addition to the above posts, 222 posts are earmarked for Abkari workers, who are the sons of the deceased workers who committed suicide after losing their jobs pursuant to the ban on the sale of arrack in 1986. 3. A Division Bench of this court in **Manoj K.R. And** **others v. Kerala State Beverages Corporation and others (2006 KHC 1474)** has directed that all regular posts vacant should be notified for appointment and all regular post now held temporary hands shall be reported in accordance with the 6 WPC 17663/2022 Rules. It was also directed that no temporary hands shall be appointed to a regular vacancy. All posts manned by temporary employees for more than one year continuously shall be treated as permanent posts. In addition to the above, a few more directions were also given. Despite the judgment to report vacancies within 6 months to the 2nd respondent, the 1st respondent, in order to protect the interest of the backdoor entrance, had not reported the vacancy to the PSC. A learned Single Judge of this court in **Najeema M.M. v. Kerala State Beverages (M&M) Corpn., Sasthamangalam [2013(1) KHC 128]** has also directed the Corporation to identify all the posts which are manned by temporary employees for a period of more than one year, notwithstanding any change of temporary hands by another set of temporary hands and shall take appropriate steps for filling up the said posts, treating the same as permanent vacancies. Even now, the same directions 7 WPC 17663/2022 are not complied with by the 1st respondent, and therefore, the petitioners have approached this court for the following ## prayers: i. Declare that the non reporting of vacancies to the posts manned by temporary/ daily wage employees for more than one year continuously, which are 498 in number, by 1st Respondent is a fraud on Constitution of India, Statute (Section 3 of the Public Service Commission (Additional Functions as respect certain Corporations and Companies) Act, 1970 & Rule 2A of the Kerala Public Service Commission (Consultation by Corporations and Companies) Rules, 1971) and this Hon'ble Court (by violation of Exhibits P8 & P9 reported decisions); ii. Declare that reporting of vacancies is permissible after the expiry of Rank List, in the event of illegal, fraudulent nonreporting of the vacancies by the State or its instrumentality; iii. Issue a writ, order or direction in the nature of mandamus commanding the 1st Respondent to report all posts, manned by temporary employees for more than one year continuously which are 498 in number as vacancies to the 2nd Respondent as the vacancies due to the Rank-holders of Exhibit P2 Ranklist, within a timeframe to be stipulated by this Hon'ble Court; iv. Issue a writ, order or direction in the nature of mandamus commanding the 2nd Respondent PSC to issue consequential advice to the 498 number of vacancies reported by the 1st Respondent in favour of the Petitioners and the Rank-holders of Exhibit P2 Ranklist, in accordance with law; v.Pass such any other direction, order or reliefs, as this Hon'ble Court may deem fit in the interest of justice, equity and good conscience. 8 WPC 17663/2022 4. A counter affidavit is filed on behalf of the 1[st] respondent, contending that the Ext.P2 Rank list came into force on 3.6.2019 and expired on 2.6.2022. The corporation has reported all vacancies that arose during the currency of the rank list, including NJD vacancies. The Government has issued Ext.P6 G.O. introducing a new staff pattern in the Corporation with effect from 12.2.2021. As per the said staff pattern, a total number of 375 posts were sanctioned in the corporation. Various Writ Petitions were filed pointing out anomalies, and this court directed the Government to look into the anomalies. The government has passed Ext.R-1(a) Government Order dated 6.4.2022. The post of Assistant Gr-I was redesignated as Assistant and has been created between the post of U.D. Clerk and Senior Assistant. A new ratio of 1:1:1:1 is also introduced in the categories of LDC, UDC Assistant, and Senior Assistant, and the total cadre of LDC was reduced from 375 to 282. The 9 WPC 17663/2022 government also accorded sanctions to downgrade 180 U.D. posts. Clerk to LD Clerks so as to give appointments to more candidates included in the rank list. 153 vacancies are reported to the PSC after reserving 18 vacancies for by-transfer and 9 vacancies for compassionate appointment. 153 vacancies were reported to the PSC as per Ext.R-1(b) dated 28.7.2021. 5. All vacancies that arose during the rank list currency were reported to the PSC. The vacancies that arose due to nonjoining duty and fresh vacancies were reported to the PSC after the expiry of the rank list. The petitioners cannot stake a claim against the vacancies that were reported after the expiry of the Ext.P2 rank list. The PSC has issued advice to 172 candidates for the open category. Apart from that, all vacancies expected to occur due to resignation were also reported to the PSC. Those vacancies that arose due to advised candidates' 10 WPC 17663/2022 resignations can be termed as fresh vacancies alone and not as non-joining vacancies. 6. Through Ext.P6, the Abkari workers who were working in the Corporation are included as LDC (Non-cadre) under 3 categories; they are LDC (NC-A), LDC (NC-B) and LDC (NCC). They are known as Abkari workers C-2, C-3 and C-3A respectively. The Abkari workers who are the dependent sons/ daughters are designated as Abkari workers C-2, which comes to 222 Nos. The Abkari workers, numbering 446, are those workers who work on daily wages, and they are designated as Abkari workers C-3. The Abkari workers, numbering 52, were those who were given re-entry to service and working on daily wages; they are termed Abkari workers C3-A. As per clause 15 of Ext.P6, the Abkari workers are considered part of the office/shop attendant category and treated as a vanishing category. 11 WPC 17663/2022 7. When the incumbent superannuates or vacates office for any reason, the vacancies are reported to the PSC as against the post of office/shop attendant category. Thus, there are no anomalies or back door entries, as contended by the petitioners. In compliance with the directions of this court, the vacancies that arose are periodically reported as against the cadre strength prevailing in the Corporation. No daily wage employment is resorted by the Corporation to engage any daily wage employee as against the sanctioned strength of LDC. LDC(non-cadre) posts are created as per Ext.P6 staff pattern as they are a vanishing category, and it is a non-cadre post. Therefore, prayed for dismissal of the Writ Petition. 8. A reply affidavit is filed denying the averments in the counter affidavit. 9. An order was passed on 1.6.2022, as the petitioners contended that the non-cadre posts and the vacancies are liable 12 WPC 17663/2022 to be filled up by the existing rank list, which was due to expire. On the submission of the counsel appearing for the Corporation that the non-cadre posts are specifically those which have been created for accommodating 3 specific categories of employees, who are not included in the cadre strength and relying on Ext.P6, it is clear that those posts are vanishing category. Therefore, the learned Single Judge declined the interim prayer sought to report the vacancies in the non-cadre posts, but it was made clear that the vacancies available within the cadre strength of LDC occupied by daily wage workers or by temporary employees shall be reported to the PSC forthwith. 10. The only question that remains is whether the number of posts shown in Ext.P6 in respect of LDC (NC-A), LDC (NCB) and LDC (NC-C) are posts borne on the cadre or not. The above 3 LDC non-cadre categories were brought into the staff 13 WPC 17663/2022 pattern of 1[st] respondent to accommodate those Abkari workers who lost their jobs or who perished due to the ban of arrack and the closure of private shops. The Government thought it fit in its wisdom to accommodate a large number of Abkari workers who lost their jobs because of the government's policy to ban arrack and to retail vending only to Corporations. Various agitations by the Abkari workers who lost their jobs paved the way for the passing of an Ext.P6 staff fixation order to accommodate the perished Abkari workers and those who lost their jobs. It was only met as a temporary measure and treated as a vanishing category. It is specifically mentioned in Ext.P6 itself that once a person in the non-cadre post superannuates or vacates the office, the said post will be reported to the PSC as one which arises in the post of office/shop attendant. Thus, it can be seen that it is not a regular post in the cadre. Only a post borne in the cadre can be reported to the PSC for advice from 14 WPC 17663/2022 the rank list. The non-cadre posts vanish; therefore, they can't be termed cadre posts. The petitioners who were rank holders in the Ext.P2 rank list can only aspire for appointment to a regular cadre post. The LDC (NC-A), LDC (NC-B) and LDC (NC-C) are not cadre posts, and therefore, they cannot be reported to the PSC. 11. The counsel for the petitioners relied on judgments produced as Ext.Nos.P8 and P9 and contended that since LDC (NC-A), LDC (NC-B) and LDC (NC-C) are posts, that are manned by employees who are not appointed under a regular method and since they continue for more than one year, it should be treated as regular vacancy and should be reported to the PSC as ordered by a Division Bench of this court in **Manoj K.R. (supra)** . As mentioned earlier, the posts of LDC (NCA), LDC (NC-B) and LDC (NC-C) are not in the cadre and are not occupied by daily wage employees. Only if a cadre post is 15 WPC 17663/2022 occupied by a daily wage employee or a temporary employee does the same need to be reported to the PSC. Since all the vacancies shown as LDC (non-cadre) in Ext.P6 are accommodated by a special category of Abkari workers, the said post cannot be reported to the PSC even if it becomes vacant. Therefore, the petitioners cannot aspire to get an appointment to the posts now shown as LDC (NC-A), LDC (NC-B) and LDC (NC-C) in Ext.P6. 12. In **Kiran K.S. v. Kerala State Electricity Board Limited [2023 (7) KHC 623],** a learned Single Judge of this court has held as follows: “17. In Arshitha P and Others v. State of Kerala, 2022 (2) KHC 299, a Division bench of this Court, after considering the entire law on the point, had occasion to observe as under: As the Apex Court has categorically held in the recent decision in Dr.Susmi’s case (supra), the correct approach is that as far as vacancies are not reported, the candidates cannot claim a legal right per se but that it is certainly possible that in given situations the departmental and State authorities may be lethargic and may be arbitrary in not reporting the vacancies or may not wish to report 16 WPC 17663/2022 vacancies for irrelevant grounds and in such scenarios, undoubtedly, the candidates included in the rank list published by the Kerala Public Service Commission can take recourse to judicial remedies and in such proceedings, it is for the government or the department concerned to furnish a suitable explanation as to the pleadings and materials urged by the applicants / petitioners and about its correctness or otherwise. If the explanation offered by the departmental authority is found to be arbitrary, then certainly the Courts can issue appropriate interim directions to ensure that the appointing authority reports specified number of vacancies on a provisional basis, well before the expiry of the rank list to judicially determine the issue later. However, where the departmental authorities come with cogent materials to justify their stand that they have already reported all available vacancies, etc, and have even taken a diligent step thereafter, etc., then it is for the petitioners to rebut those aspects on the basis of cogent and relevant pleadings and materials. If proper materials are not there, it may not be right and proper for the Court exercising powers of judicial review to direct the appointing authority to report vacancies. 18. As held by the Apex Court as well as this Court, a 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. Even if a number of vacancies are notified for appointment and an adequate number of candidates are found fit, the successful candidates do not acquire an indefeasible right to be appointed. 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 Art.226 of the Constitution of India, compel the appointing authority to fill up those vacancies. Circumstances such as financial difficulties, 17 WPC 17663/2022 orders of statutory authorities resulting in reduction of the number of vacancies or abolition of posts etc., would be good and sufficient reasons for the appointing authority to take a decision not to fill up the vacancies. The individuals awaiting appointment and advice may have recourse to judicial remedies. In such proceedings, the Government or the agency concerned can furnish a suitable explanation, and if that is found to be bona fide and reasonable, this Court shall not interfere by exercising powers under Art.226 of the Constitution of India. However, if there are strong and cogent materials to come to the considered conclusion that the stand of the State authorities is arbitrary and without any materials, then certainly the High Court or the Tribunal exercising powers under judicial review can certainly exercise their discretionary powers to issue appropriate directions.” Therefore, in the light of the above judgment and the discussions made above, I am of the considered opinion that the petitioners are not entitled to any of the reliefs sought, and accordingly, the Petition fails. In the result, the Writ Petition is dismissed. Sd/- ## **BASANT BALAJI, JUDGE** dl/ 18 WPC 17663/2022 ``` APPENDIX OF WP(C) 17663/2022 ``` ## **`PETITIONER EXHIBITS`** - **`Exhibit P1 A TRUE PHOTOCOPY OF THE NOTIFICATION PUBLISHED BY THE PSC IN GAZETTE DATED 26/12/2014 FOR RECRUITMENT TO THE POST OF LDC IN KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD. (CATEGORY NO.561/2014).`** - **`Exhibit P2 A TRUE PHOTOCOPY OF THE RELEVANT EXTRACTS OF RANK LIST NO.329/19/ER IVB DATED 03/06/2019 OF LDC POST IN KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD. (CATEGORY NO.561/2014), PUBLISHED BY PSC.`** - **`Exhibit P3 A TRUE PHOTOCOPY OF THE RTI APPLICATION DATED 05/08/2020 PREFERRED BY ANOOP A AND ITS REPLY BY NO.07990/65/P.A./KSBC/2019-2020 DATED 18/09/2020 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT.`** - **`Exhibit P4 A TRUE PHOTOCOPY O THE RTI REPLY BY NO.KSBC/P.A./10051/301/2021 DATED 10/08/2021 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT.`** - **`Exhibit P5 A TRUE PHOTOCOPY OF THE RTI REPLY BY NO.KSBC/P.A./022201/427/2022 DATED 27/01/2022 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER & MANAGER (PERMIT) OF THE 1ST RESPONDENT.`** - **`Exhibit P6 A TRUE PHOTOCOPY OF THE G.O.(K) NO.13/2021/T.D. DATED 12/02/2021 ALONG WITH ITS ANNEXURE I ISSUED BY THE DEPARTMENT OF TAXES OF THE GOVERNMENT OF KERALA.`** - **`Exhibit P7 A TRUE PHOTOCOPY OF THE COMMUNICATION BY NO.KSBC/PA/9606/568/2022 DATED 12/05/2022 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT.`** - **`Exhibit P8 A TRUE PHOTOCOPY OF THE JUDGMENT OF THE DIVISION BENCH OF THIS HON'BLE COURT, MANOJ K.R. AND OTHERS`** 19 WPC 17663/2022 ``` V. KERALA STATE BEVERAGES CORPORATION AND OTHERS REPORTED IN 2006 KHC 1474. ``` ``` Exhibit P9A TRUE PHOTOCOPY OF THE JUDGMENT OF THE SINGLE BENCH OF THIS HON'BLE COURT, NAJEEMA M.M. AND OTHERS V. KERALA STATE BEVERAGES (M&M) CORPORATION, SASTHAMANGALAM AND ANOTHER REPORTED IN 2013(1) KHC 128. ``` ``` Exhibit A TRUE PHOTOCOPY OF THE SECTION 4 (1) (B) P10DECLARATION OF BEVCO UNDER THE RIGHT TO INFORMATION ACT, 2005 PUBLISHED IN THE OFFICIAL WEBSITE, WHICH IS SHOWN IN ANNEXURE 1. ``` ``` Exhibit A TRUE PHOTOCOPY OF TH SECTION 4 (1) (B) DECLARATION P11OF BEVCO UNDER THE RIGHT TO INFORMATION ACT, 2005 PUBLISHED IN THE OFFICIAL WEBSITE, WHICH IS SHOWN IN ANNEXURE 2. ``` ``` Exhibit A TRUE PHOTOCOPY OF THE SECTION 4(1) (B) DECLARATION P12OF BEVCO UNDER THE RIGHT TO INFORMATION ACT, 2005 PUBLISHED IN THE OFFICIAL WEBSITE, WHICH IS SHOWN IN ANNEXURE 10. ``` ``` Exhibit A True Photocopy of the Judgment of the Supreme P13Court of India in Kerala State Beverages Corporation Ltd. and Others Vs. P.P.Suresh and Others [2019 KHC 7023] ``` ## **`RESPONDENT EXHIBITS`** ``` Ext.R1(a)True copy of the Order, G.O.(MS) No. 20/2022/TAXES dated 6-4-2022 issued by the Government. ``` ``` Ext.R1(b)True copy of the communication No. 10004/AE15/2020/KSBC dated 28-7-2021 sent by the Beverages Corporation to the Secretary, P.S.C. ``` 20 WPC 17663/2022 ``` Ext.R1(c)True copy of the communication No. 16672/AE10/2021/KSBC dated 21-12-2022 sent by the Beverages Corporation to the Regional Officer, P.S.C. ``` ``` Ext.R1(d)True copy of the Proforma for reporting NJD vacancies in the category of LDC dated 11-10-2022 sent by the Beverages Corporation to the PSC. ``` ``` Ext.R1(e)True copy of the Proforma for reporting NJD vacancies in the category of LDC dated 23-12-2022 sent by the Beverages Corporation to the PSC. ```