Seena P Nair v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943** **OP(KAT) NO. 82 OF 2021** **AGAINST THE ORDER IN OA(EKM) NO.1124/2019 DATED 09.11.2020 OF KERALA** ## **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER:** **SEENA.P.NAIR AGED 43 YEARS, W/O. VINAYAKUMAR A, MANKAMOOLA, PERIYANGANAM P.O., NEELESHWARAM, KASARGOD-671 314. BY ADVS. SRI.V.JOHN MANI SRI.S.JAYANT SRI.JACKSON JOHNY SRI.VARGHESE SABU SRI.SETHULAKSHMI K.K. SMT.GAYATHRI MENON SRI.SONY P.G.** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION**| ||**DEPARTMENT, THIRUVANANTHAPURAM-695 001.**| |**2**|**THE SECRETARY ,**| ||**PUBLIC SERVICE COMMISSION, THULASI HILLS, PATTOM**| ||**PALACE P.O., THIRUVANANTHAPURAM-695 004.**| |**3**|**THE DIRECTOR,**| ||**VHSE, DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION,**| ||**HOUSING BOARD BUILDING, 4TH FLOOR, SANTHI NAGAR,**| ||**THIRUVANANTHAPURAM-695 001.**| |**4**|**THE DIRECTOR,**| ||**HSST, DIRECTOR OF HIGHER SECONDARY EDUCATION,**| ||**HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-**| ||**695 001.**| ||**BY ADVS.**| ||**R1, 3 & 4 BY SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT. PLEADER**| ||**R2 BY SRI.P.C.SASIDHARAN, SC, KPSC**| **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No.82/2021 2 ## **ALEXANDER THOMAS & A. BADHARUDEEN, JJ.** ## **-----------------------------------------------------** O.P.(KAT) No.82 of 2021 _[arising out of the impugned final order dated 09.11.2020 in O.A. (Ekm) No.1124/2019 on the file of the KAT, EKM Bench]_ **--------------------------------------------** Dated this the 04[th] day of August, 2021 ## **JUDGMENT** ## **Alexander Thomas, J.** The petitioner herein had filed the aforecaptioned original application before the Kerala Administrative Tribunal, seeking for directions to the respondent Kerala Public Service Commission and the respondent appointing authority to advice and appoint her to the post of Non-Vocational Teacher (Junior) in History on the basis of her inclusion in Anx.A4 ranked list dated 19.06.2014 published by the respondent-Kerala Public Service Commission. 2. The Tribunal, after hearing both sides has rendered the impugned Ext.P1 final order dated 09.11.2020 dismissing O.A. (Ekm) No.1124/2019 on the ground that no vacancies reported during the currency of Anx.A4 ranked list are pending for advices at the hands of the respondent-Kerala Public Service Commission authority and moreover Anx.A4 ranked list has already expired on O.P.(KAT) No.82/2021 3 18.06.2017. In these circumstances, the Tribunal held that no reliefs can be granted by the Tribunal in the O.A. filed by the petitioner herein/the original applicant. It is aggrieved by the impugned Ext.P1 final verdict of the Tribunal that the petitioner herein/the original applicant has approached this Court by filing the instant original petition under Articles 226 & 227 of the Constitution of India. 3. Heard Sri.John Mani, learned counsel appearing for the petitioner in the original petition/sole applicant in the O.A. before the Tribunal, Sri.P.C. Sasidharan, learned Standing Counsel for the Kerala Public Service Commission appearing for the 2[nd] respondent in the original petition/2[nd] respondent in the original application and Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for respondents 1, 3 & 4 in the original petition/ respondents 1, 3 & 4 in the original application. 4. The case of the petitioner is that she had applied in pursuance of Anx.A1 selection notification dated 31.12.2010, issued by the respondent-Kerala Public Service Commission for selection and appointment to the post of Non-Vocational Teacher (Junior)History in the Vocational Higher Secondary Education Department O.P.(KAT) No.82/2021 4 of the Government of Kerala as well as the post of Higher Secondary School Teacher (Junior) [HSST (Jr.)] in the Higher Secondary Education Department of the Government. After the due process of selection the respondent Kerala Public Service Commission has published Anx.A4 ranked list dated 19.06.2014 for the post of NonVocational Teacher History (Junior) [NVT History (Jr.)], in which the petitioner herein has been included as rank No.130. So also, the respondent Kerala Public Service Commission had published Anx.A3 ranked list dated 21.04.2014 for the post of HSST (Jr.) in which the petitioner has been included therein as rank No.158. The present claims of the petitioner is only in relation to selection to the post of NVT History (Jr.) covered by Anx.A4 ranked list. 5. From the pleadings and materials on record it can be seen that the gist of the case is that the Kerala Public Service Commission had made the requisite advice as against the vacancies reported to them by the appointing authority, of candidates included in Anx.A4 ranked list for the post of NVT History (Jr.), and that Anx.A4 ranked list dated 19.06.2014 had expired on 18.06.2017. That, after the expiry of the ranked list, one NJD vacancy in the post of NVT History (Jr.) was reported by the appointing authority to the O.P.(KAT) No.82/2021 5 Kerala Public Service Commission. That, since the Kerala Public Service Commission has effected advice as against all vacancies reported during the currency of Anx.A4 ranked list and as the subsequent NJD vacancy has been reported only after the expiry of the said ranked list at Anx.A4, there is no question of the Kerala Public Service Commission having the competence to advice any more candidates included in Anx.A4 ranked list for the post of NVT History (Jr.). 6. Since the petitioner had hotly disputed the said factual aspects found by the Tribunal, this Court at the admission stage had directed the respondent-Kerala Public Service Commission to file a counter affidavit in this original petition with all the requisite details. So also, the petitioner was specifically directed to produce a copy of the appointment chart in respect of the instant selection covered by Anx.A4 ranked list, published by the respondent-Kerala Public Service Commission in their official website. 7. It is well known that the respondent-Kerala Public Service Commission would publish the appointment chart of the selection advices made from a given ranked list, in their official website and since all the details of the vacancies reported during the O.P.(KAT) No.82/2021 6 currency of the ranked list in question and the manner in which the advice has been made by the Kerala Public Service Commission as against 'Open Competition [OC turns]' and 'Backward Class [BC Turns]' are given in detail in the said appointment chart, it was the bounden duty of the petitioner to have apprised himself of the fact atleast before the filing of this original petition as to whether he has any sufficient materials to controvert the factual aspects brought before the Tribunal. Though we gave several opportunities, the petitioner had not cared to produce the said appointment chart. Only after the last posting date, the petitioner has produced a document as Ext.P8 claiming it to be the rotation chart as published in the official website. 8. Since the Tribunal had clearly found that all vacancies reported by the appointing authority to the Kerala Public Service Commission during the currency of Anx.A4 ranked list has been subjected to advice process and since the ranked list has also expired, the petitioner was obliged to have apprised himself about the correct factual aspects which are already in the public domain before he had approached this Court for mounting a challenge by seeking resort to the extra-ordinary remedies conferred under O.P.(KAT) No.82/2021 7 Articles 226 & 227 of the Constitution of India. However, the respondent Kerala Public Service Commission has filed a detailed counter affidavit dated 29.06.2021 in this case. A brief recital of the factual contents of the said counter affidavit would clearly show that the factual aspects noted by the Tribunal in the impugned verdict are correct. However, since the petitioner persisted to make arguments, we are constrained to refer to the details of the contents in the said counter affidavit dated 29.06.2021. 9. From the pleadings on record and on the basis of the submissions made by the learned Standing Counsel for the respondent Kerala Public Service Commission, it appears that the post of HSST (Jr.) is in the Higher Education Department of the Government of Kerala. Whereas the post of Non-Vocational Teacher (Jr.) would come under the Vocational Higher Secondary Education Department of the Government of Kerala. The said two posts and services are two distinct posts and coming under distinct services of distinct departments. Of course, both the Directorate of Higher Secondary Education and the Directorate of Vocational Higher Secondary Education comes under the administrative control of the State Government in the General Education O.P.(KAT) No.82/2021 8 Department. 10. It is also common ground that the qualifications for the post of HSST (Jr.) and NVT (Jr.) in a given discipline are broadly the same. However, meritorious candidates would prefer appointment as HSST(Jr.) compared to appointment as NVT (Jr.). 11. Since, both the two different posts were notified under a common notification and selection process, and distinct ranked lists as per Anxs.A4 & A3 have been prepared for the said two distinct posts and as it was found that many of the candidates included in Anx.A3 ranked list for the post of HSST (Jr.) are also included in Anx.A4 ranked list for the post of NVT (Jr.) and keeping in view that ordinarily candidates prefer appointment to the post of HSST (Jr.), the Kerala Public Service Commission decided to work out rotation for effecting advice memos to candidates included in Anx.A3 ranked list for the post of HSST (Jr.) initially. Accordingly, the advice process in relation to the post of HSST (Jr.) covered by Anx.A3 was initiated by the Kerala Public Service Commission. Since it was found that many of the candidates advised for the post of HSTT (Jr.) from Anx.A3 ranked list may not be taking up appointment if offered to the post of NVT (Jr.) subsequently, the respondent Kerala O.P.(KAT) No.82/2021 9 Public Service Commission has taken a very fair and liberal procedure of requesting the candidates advised from Anx.A3 ranked list for the post of HSST (Jr.) as to whether they are willing to take up appointment if advice memo is issued to them in respect of the post of NVT (Jr.) covered by Anx.A4. This was so done by the Kerala Public Service Commission to ensure that the candidates who are already advised and appointed as HSST (Jr.) and who are disinterested in taking up appointment for the post of NVT (Jr.), may say so in writing to the Kerala Public Service Commission so that such unwilling candidates would be excluded from Anx.A4 ranked list for the post of NVT (Jr.). If the said process had not been effectuated by the Kerala Public Service Commission, then it would have amounted to advising candidates from amongst Anx.A4 ranked list for the post of NVT (Jr.), and such a candidate may already have been advised and appointed to the post of HSST (Jr.) from amongst Anx.A3. If the said procedure had been adopted then, such advised candidates for the post of NVT (Jr.) who are not interested to take up the appointment will still happened to be offered appointment order by the appointing authority based on the advice memo of the Kerala Public Service Commission and only O.P.(KAT) No.82/2021 10 when they do not report for joining duty before the appointing authority within the requisite time, will the appointing authority get the jurisdiction to report the said vacancy as a Non-Joining of Duty (NJD) vacancy to the Kerala Public Service Commission. It is only after receipt of the vacancy requisition report of such NJD vacancy will the Kerala Public Service Commission get jurisdictional competence to advice candidates as against such NJD vacancy so reported and with the rider that such NJD vacancy should have been reported before the expiry of the ranked list like Anx.A4. If, as a matter of fact, such NJD vacancy is reported to the Kerala Public Service Commission by the appointing authority after the expiry ranked list at Anx.A4 then there is no question of the Kerala Public Service Commission having the competence to advice a candidate from such a time expired ranked list in view of the mandatory provisions contained in Rule 13 & 14, more particularly Rule 14 of the Kerala Public Service Commission (Rules of Procedure). It is only on account of these aspects and taking note of the legitimate interests of candidates included in Anx.A4 ranked list that the Kerala Public Service Commission has adopted this fair procedure of even going to the extent of asking willingness from candidates O.P.(KAT) No.82/2021 11 advised from Anx.A3 ranked list for the post of HSST (Jr.) as to whether they would take up appointment if advice memo is issued to them to the post of NVT (Jr.) from amongst Anx.A4 ranked list. Such process was also duly completed by the Kerala Public Service Commission. Some of the candidates who were already advised from Anx.A3 ranked list for the post of HSST (Jr.) had given their option that they are not interested to take up the offer of advice and appointment as NVT Junior. Some of the advised candidates from Anx.A3 had not given such option. 12. In respect of candidates advised from Anx.A3 ranked list who had given their unwillingness in writing to the Kerala Public Service Commission at that stage that they are not interested to take up advice and appointment to the post of NVT Junior, the Kerala Public Service Commission then had taken steps to delete the names of such disinterested (advised) candidates, who had given their option that they are not willing. Because of this fair procedure adopted by the Kerala Public Service Commission, candidates who may be lower in rank in Anx.A4 ranked list, will have more brighter chances of getting advice and appointment in the advice process from amongst Anx.A4 ranked list for the post of NVT(Jr.) O.P.(KAT) No.82/2021 12 13. The specific case put forward by the petitioner in the original petition is to the effect that advice and appointments were made only for the post of HSST (Jr.) covered by Anx.A3 ranked list and that no advices were made by the Kerala Public Service Commission for the post of NVT (Jr.) covered by Anx.A4 ranked list. 14. If the abovesaid factual position so vehemently canvassed by the petitioner is correct and if as a matter of fact, the Kerala Public Service Commission has not advised candidates from Anx.A4 ranked list in spite of vacancies reported to the said post during the currency of the said ranked list, then certainly a court exercising judicial review can interdict in the matter. The only issue is as to whether the abovesaid factual position canvassed by the petitioner is correct or not. 15. In order to controvert the abovesaid factual position the Kerala Public Service Commission has given the details of all the advices made in respect of candidates as against the vacancies reported during the currency of Anx.A4 ranked list to the post of NVT (Jr.) covered by Anx.A4 ranked list as can be seen from a reading of paragraph Nos.6 & 8 of the counter affidavit dated 29.06.2021 filed in this original petition. It may be pertinent to O.P.(KAT) No.82/2021 13 extract the contents of the tabular column of the details given in paragraph No.6 on pages 3 & 4 of the said counter affidavit, which reads as follows:- _“6. The vacancies reported to the post against which the commission issued advice are as follows:_ |**_S._**<br>**_No._**|**_No. and date of_**<br>**_requisition letter_**|**_Date of_**<br>**_receipt_**|**_No. and_**<br>**_nature of_**<br>**_vacancy_**|**_Date of_**<br>**_advice_**| |---|---|---|---|---| |_1_|_E4/873/07_<br>_dated 20/09/2010_|_30/09/10_|_2 NJD (MRI 16_<br>_M & MRI 20V)_|_11/02/16_| |_2_|_E4/873/07_<br>_dated 01/07/2014_|_05/07/14_|_1 fresh_|_11/02/17_| |_3_|_E4/873/07_<br>_dated 23/07/2015_|_03/08/15_|_1 fresh_|_11/02/16_| |_4_|_E4/873/07_<br>_dated 02/12/2016_|_21/12/17_|_1 NJD (MRI 22_<br>_LC/aI)_|_03/01/17_| |_5_|_The first three vacancies_<br>_advised on 11/02/16 were_<br>_treated as NJD and_<br>_treated the vacancies as_<br>_received on 18/06/2017_<br>_(The three candidates did_<br>_not respond to the memo_<br>_issued by the Commission_<br>_so as to re-constitute their_<br>_identification Certificates)_||_3 NJD_|_26/06/18_| 16. The names and details of the candidates so advised to the post of NVT (Jr.) from amongst Anx.A4 ranked list are also given in paragraph No.8 of the said counter affidavit, which reads as follows:- _“6. Taking into account the willingness thus obtained, 8 (6 NJD + 2 Fresh candidates had been advised from the ranked list of NVT, Jr. during the currency of the list as detailed below:_ _**S. Name of Turn Rank Date of**_ O.P.(KAT) No.82/2021 14 |**_No._**|**_Candidate_**|||**_Advice_**| |---|---|---|---|---| |_1_|_Mohammed Ashraf_<br>_Koyamburavan_|_NJD Comp to_<br>_MR I 16 M_|_19_|_11/02/2016_| |_2_|_Sindhu M._|_NJD comp to_<br>_MR I 2o V_|_7_|_11/02/2016_| |_3_|_Sivadasan Madathil_|_MR I 21 OC_|_1_|_11/02/2016_| |_4_|_Mary Pushpam K._|_MR I 22 LC/AI_|_225_|_11/02/2016_| |_5_|_Seena N. Joy_|_NJD comp to_<br>_MR I 22 LC/AI_|_R-1, /L_<br>_LC/AI_|_01/03/2017_| |_6_|_Firoz C.P._|_NJD comp to_<br>_MR I 16 M_|_20 (Kept in_<br>_abeyance)_|_26/06/2018_| |_7_|_Subhashkumar A._|_NJD comp to_<br>_MR I 20 V_|_15_|_26/06/2018_| |_8_|_Sandeep Somanath_|_NJD comp to R I_<br>_21 OC_|_3_|_26/06/2018_| 17. Further details are given in paragraph No.9 of the said ## counter affidavit, which reads as follows:- _“9. The advice from Annexure A4 ranked list (for the post of NVT History) was made in three phases. In the first phase advised on 11/02/2016, four vacancies awere considered (2 NJD vacancies reported on 30/09/2010 and 2 fresh reported on 05/07/2014 and 03/08/2015) and 4 candidates were advised against the turns MRI 16M, MRI 20V, MRI 21 OC and MRI 22 LC/AI. Later it was ordered to reconstitute the Identification certificate for the advised candidates. The first three candidates did not respond to the intimation issued for IC reconstitution and the vacancies were later treated as NJD. Second phase was for one NJD vacancy reported on 21/12/2016 against the turn MRI 22 LC/AI and was advised on 01/03/2017. In the third phase the first three candidates advised on 11/02/2016 were treated as NJD as they did not respond to the letter for IC reconstitution and treated the vacancies as received on 18/06/2017 and were advised on 26/06/2018 against the turns MRI 16 M, MRI 20V and MRI 21 OC.”_ 18. The details of the candidates advised for the post of HSST (Jr.) from amongst Anx.A3 ranked list and from whom willingness was sought for are also given in the counter affidavit and there is no necessity for us to get into those details. Thus it can be O.P.(KAT) No.82/2021 15 seen from the contents of the said counter affidavit that the Kerala Public Service Commission has effected advice process to the post of NVT (Jr.) as against the vacancies reported during the currency of Anx.A4 ranked list. Further it is also stated by the Kerala Public Service Commission that Anx.A4 ranked list dated 19.06.2014 had expired on 18.06.2017. Thereafter one NJD vacancy in the post of NVT (Jr.) which occurred on account of Non-Joining Duty of a candidate advised from Anx.A4 ranked list was reported by the appointing authority to the Kerala Public Service Commission on 20.10.2018. As noted by the Tribunal, the Kerala Public Service Commission is incompetent to advice a candidate from the time expired Anx.A4 ranked list in respect of the said NJD vacancy, which was reported on 20.10.2018, which is after the expiry of Anx.A4 ranked list on 18.06.2017. The law in that regard is too well settled to require the citation of any judicial authority, that the Kerala Public Service Commission has competence only to advice candidates as against the vacancies reported during the currency of the ranked list. It is also well established that so long as the vacancy has been reported before the expiry of the ranked list, then Kerala Public Service Commission can even advice candidate from a ranked O.P.(KAT) No.82/2021 16 list after the expiry of the ranked list as against the vacancy which has been duly reported before the expiry of the ranked list. This is the clear mandate of Rule 14 of the Kerala Public Service Commission Rules. But in the case of any vacancies, be it fresh or NJD, if the same is reported after the expiry of the ranked list, then the Kerala Public Service Commission loses its jurisdictional competence to advice any candidate as against such vacancies reported after the expiry of the ranked list from amongst candidates included in such a time expired ranked list. In the light of these aspects, the Tribunal has rightly found that the Kerala Public Service Commission has advised candidates from amongst Anx.A4 ranked list to the post of NVT (Jr.) in respect of the vacancies reported during the currency of Anx.A4 ranked list and that the Kerala Public Service Commission has no competence to advice candidate from Anx.A4 ranked list in respect of the NJD vacancies which reported on 20.10.2018. 19. In this connection it may not be out of place to note that it is well settled that candidates included in a ranked list has no indefeasible right for appointment. See _**Manoj Manu** v._ _**Union of India** [(2013) 12 SCC 171],_ _**Bindu I.** v._ _**State of Kerala** [2012_ O.P.(KAT) No.82/2021 17 _(2) KLT 604],_ etc. Further, the Full Bench of this Court in the celebrated case in _**Vimala Kumari** v._ _**State of Kerala** [1994 (2) KLT 47 (FB)]_ has held that no advice can be effected by the PSC from a time expired ranked list as against the vacancies reported after the expiry of the said ranked list. Further, the Apex Court has held in decisions as in _**K.Thulaseedharan** v._ _**KPSC & Others** [(2007 ) 6 SCC 190],_ _**Deepa Keyas** v._ _**KSEB** [2007 (4) KLT 111_ _(SC)]_ that when a ranked list prepared by the Kerala Public Service Commission has expired, there cannot be any direction to the Kerala Public Service Commission to keep alive the ranked list and issue advice therefrom, etc. 20. Now, Sri.John Mani, the learned counsel appearing for the petitioner would still vehemently argue that based on the pleadings in paragraph No.9 of the reply affidavit dated 20.07.2021, that only advice memo has been issued and no posting or appointment orders are done for the post of NVT (Jr.) till the expiry of the ranked list. 21. We had requested the learned Senior Government Pleader to respond to the said allegation. 22. Sri.B. Unnikrishna Kaimal, learned Senior Government O.P.(KAT) No.82/2021 18 Pleader, appearing for the State and the departmental authorities concerned would point out that no such averment or allegation has been raised by the petitioner at any point of time either in the pleadings before the Tribunal or before this Court and such an averment is made for the first time in a reply affidavit which appears to have been filed with a bench mark today and that therefore he is totally taken by surprise and he is not in a position to answer the said allegation. Further, the learned Senior Government Pleader would submit that it is a matter of common knowledge that in ordinary course of things, the appointing authority would always honour the advice memos issued by the Kerala Public Service Commission and the candidate advised by the Kerala Public Service Commission would be offered appointment order and if any request is made by a candidate for more time to join duty beyond the stipulated time, then that aspect will also have to be considered about which some reference is made in the proviso to Rule 27(c) of KS & SSR, Part-II. If the candidate does not join duty within the stipulated time, then the appointing authority get competence to furnish the report of the NJD vacancy to the Kerala Public Service Commission. O.P.(KAT) No.82/2021 19 23. That apart, Sri.P.C. Sasidharan, learned Standing Counsel for the Kerala Public Service Commission would point out that the jurisdictional competence of the Kerala Public Service Commission is mainly in the matter of effectuating advice memos to candidates as against vacancies reported during the currency of a ranked list and the matters relating to appointment, etc. certainly would come mainly within the province of the appointing authority and if any candidate points out to the Kerala Public Service Commission that he/she has not been offered appointment order by the appointing authority despite issued advice memo by the Kerala Public Service Commission then, the Kerala Public Service Commission would examine those matters and would also give necessary instructions to the appointing authority as to why the appointment order is not being offered and also to expedite process in that regard. That apart, once advice memos are issued to the candidates included in Anx.A4 ranked list, then if at all any appointment order has not been issued to such advised candidates that will not give rise to any legally justiciable cause of action to a candidate like the petitioner who is ranked quite below as rank No.130 in Anx.A4 ranked list. O.P.(KAT) No.82/2021 20 The cause of action in that regard would be only in relation to the candidate who has been issued advice memo by the Kerala Public Service Commission and who has been refused appointment order by the appointing authority. The process of any delay on the part of the appointing authority in issuing appointment order to the PSC advised candidates, will not ordinarily affect the rights of the remaining candidates in the ranked list to be considered for advice in accordance with the Rules of Reservation and Rotation in OC and BC turns as against the remaining vacancies reported during the currency of the ranked list. 24. Hence we are also convinced that even if it is assumed that there has been any delay in offering appointment order to the Kerala Public Service Commission advised candidates by the appointing authority, that is not a matter of look out for a third party like the petitioner, and that is a grievance that is to be voiced ordinarily by the advised candidate who has been refused appointment order. That apart, going by the feable nature of the said plea and since the same is made for the first time in the reply affidavit and taking note of the other pleadings in the original application and the original petition, we will not far off the mark to O.P.(KAT) No.82/2021 21 even infer that such a factual allegation is made without any proper verification. This we say so consciously as despite the factual position found against the petitioner by the Tribunal in the impugned verdict, the petitioner has approached this Court without even examining the contents of the appointment chart published by the Kerala Public Service Commission in their official website, which is available to all in the public domain. Despite, we had repeatedly alerted the learned counsel appearing for the petitioner to go through the appointment chart and even to produce a copy of the same, and the same was done only after the last alert we made to him on the previous posting date. We had querried to Sri.P.C.Sasidharan, the learned Standing Counsel for the Kerala Public Service Commission as to whether Ext.P8 is the appointment chart duly published by the Kerala Public Service Commission in their official website in regard to the present selection. 25. Sri.P.C. Sasidharan, the learned Standing Counsel for the Kerala Public Service Commission would submit that since he has been served with a copy of the said reply affidavit only today, he cannot immediately answer but a mere perusal of Ext.P8 would clearly give an indication that it is only the cycle or roster for making O.P.(KAT) No.82/2021 22 advice in the cycle of vacancies as required in Annexure to Rule 14 to 17 and that Ext.P8 is the document which summarises the roster/cycle in which the advice is to be made in the OC/BC turns, given even in the text book which has published the Rules contained in KS & SSR, etc. In the light of the said conduct of the petitioner, we will not be far off the mark to atleast presume that the abovesaid factual allegation made for the first chance that appointment orders were never given to the Kerala Public Service Commission advised candidates may not be reflecting the correct factual position. 26. Faced with the situation, Sri.John Mani, learned counsel appearing for the petitioner would then say that his main submission is that the Kerala Public Service Commission has blatantly violated Rule 18(iii) of the Kerala Public Service Commission Rules of procedure in this case. 27. Clause (iii) to Rule 18 of the Kerala Public Service Commission Rules of Procedure was introduced as per notification No.AV(2)40352/98/GW dated 21.07.2001 and the said Rule 18(iii) as is stood at the time of its introduction with effect from 21.07.2001 provided as follows:- > _“_ _**Rule 18(iii).** A candidate whose name has been included in more than one Ranked List for the Same department/Various departments finalized on the basis of the very same notification under_ O.P.(KAT) No.82/2021 23 _different methods of recruitments/appointments and when such a candidate is advised by the Commission for recruitment from any one of the aforesaid Ranked Lists, his name shall be removed from the other Ranked List/Lists.”_ Later, Clause (iii) to Rule 18 was modified as per Notification No.AV(1)23819/11/GW. dated 24.07.2013, published in Kerala Gazette Extraordinary No.2280 dated 31.07.2013. The said amended provisions of Rule 18(iii) of the Kerala Public Service Commission (Rules of Procedure), made effective from 31.07.2013 (date of Gazette publication), now provides as follows:- _“_ _**Rule 18(iii).** When a candidate whose name has been included in more than one Ranked List for the same post in the same department/different departments finalized on the basis of the very same or any other notification under different methods of recruitment/appointment and for which a common Advice List is prepared and the said Ranked Lists are operated simultaneously, and when such a candidate is advised by the Commission from any one of the aforesaid Ranked Lists, his name shall be abrogated from the other Ranked Lists.”_ A comparison of the pre-amended provision and the amended Rule 18(iii) would make it clear that substantial changes has been brought into Rule 18(iii). 28. Sri. P.C. Sasidharan, the learned Standing Counsel for the Kerala Public Service Commission has raised a strong objection that the petitioner should not be permitted to raise any such allegation at this fag end regarding the alleged violation of Rule 18(iii). Since no such averment or allegation has ever been raised by O.P.(KAT) No.82/2021 24 the applicant/petitioner either before the Tribunal or before this Court and that this has been made for the first time in paragraph No.2 of the reply affidavit served on him very recently. Further it is pointed out that the contentions of the petitioner regarding the applicability of Rule 18(iii) are untenable and unsustainable. 29. Apart from blandly raising a contention on the basis of Rule 18(iii) ( _supra)_ for the first time in the reply affidavit filed before this Court very recently, the petitioner has not made any necessary pleadings to substantiate that the two posts in the two departments are the same posts as envisaged in the above Rule. So the above contention of the petitioner is to be rejected only. 30. That apart, it appears that though Anx.A1 selection notification was issued on 31.12.2010, Anx.A3 ranked list to the post of HSST (Jr.) has been published on 21.04.2014 and Anx.A4 ranked list to the post of NVT (Jr.) has been published on 19.06.2014. 31. Rule 18(iii) is a matter which purely regulates the procedure and does not amount to confer any substantive rights. Hence, it is elementary that prospective amendments made to procedural norms even without any explicit provisions of retrospective operation, would apply not only to cases which arises O.P.(KAT) No.82/2021 25 on or after the date of the amended procedural norm but also would affect all matters pending as on the date of introduction of the amended procedural norms. Hence the amended provisions of Rule 18(iii) made effective from 31.07.2013 will apply to the instant selection which was pending as on the date of introduction of the amended procedural norms. Moreover, the two ranked lists in question has been published much after the introduction of the amended norms with effect from 31.07.2013. Very crucially, the petitioner does not have any case that the PSC has prepared a common advice list and the PSC has simultaneously operated the two ranked lists and has thus issued a common advice list as envisaged in Rule 18(iii) above. On the other hand, it appears that, the PSC has consciously taken a decision in this case to separately operate the two separate ranked lists and has thus issued separate advice lists for the two selections in question covered by two distinct ranked lists as Anx.A3 & Anx.A4. 'Advice List' has been defined in Rule 2(a) of the KPSC Rules of Procedure as “the list of candidates drawn from the ranked list and arranged on the basis of the rules of recruitment relating to the post in respect of the vacancies reported from time to time”. This appears to be the same as the expression O.P.(KAT) No.82/2021 26 'select list' as appearing in the 3[rd] proviso to Rule 14 of KS & SSR (Part-II), which is the list of eligible candidates eligible to be appointed under those rules (Rules 14 to 17 of Part II KS & SSR), applying the rotations specified for the cycle of vacancies, etc. whereas, 'ranked list' has been defined as per Rule 2(g) of the KPSC (Rules of Procedure) as “the list of candidates arranged in the order of merit, either on the basis of interview or examination or by both”. _Prima facie_ , it appears that going by the amended provisions of Rule 18(iii), the same would apply only where the name of a candidate has been included in more than one ranked list for the same post in the same department/different departments finalised the very same or any other notification under different methods of recruitments/ appointments and the PSC should have taken a conscious decision in its discretion to simultaneously operate the ranked list and to issue a common advice list thereon, etc. It is only if these crucial jurisdictional facts are satisfied that Rule 18(iii) can be pressed into service. The petitioner has no case that the PSC has taken a conscious decision in its discretion to simultaneously operate both the abovesaid ranked lists and to issue a common advice list, etc. In view of the lack of pleadings and in view of the belated plea, this O.P.(KAT) No.82/2021 27 court need not pronounce any final opinion on this issue. The said new contention of the petitioner is only to be rejected for lack of pleadings and material particulars and also for the reason that the plea has been made by the petitioner very belatedly. Moreover the PSC has clearly averred in para 12 on pages 6 & 7 of their counter affidavit in this O.P. that the petitioner with Rank No.130 and that too without having reservation eligibility, is having only a very remote chance to get advice memo as lot of candidates above him, were also not advised. 32. For all these reasons, we are of the firm view that the petitioner is championing the cause which is not justified by any factual or legal grounds. We have elaborately dealt with all these aspects only because of the vehement submissions of the learned counsel appearing for the petitioner about the alleged illegalities and irregularities in the selection process as above. On the other hand, the Tribunal came to the heart of the matter and gave a very short verdict which is really the core aspect of the case. Hence, for all these reasons, no interdiction is called for with the considered verdict of the Tribunal. The original petition fails O.P.(KAT) No.82/2021 28 and the same will stand dismissed. However, there will be no order as to costs. ## **Sd/ALEXANDER THOMAS, JUDGE** **Sd/A.BADHARUDEEN, JUDGE** Skk O.P.(KAT) No.82/2021 29 ## **APPENDIX OF OP(KAT) 82/2021** ## **' - PETITIONER S ANNEXURE:** **EXHIBIT P1 A TRUE COPY OF THE ORDER OF O.A. NO. 1124 OF 2019 BY THE KERALA ADMINISTRATIVE TRIBUNAL DATED 09.11.2020. EXHIBIT P2 A TRUE COPY OF THE O.A. NO. 1124 OF 2019 FILED BY PETITIONER DATED 07.06.2019. ANNEXURE A1 A TRUE COPY OF THE NOTIFICATION ISSUED BY THE 2ND RESPONDENT AS PER CATEGORY NO. 442/2010 TO 444/2010 DATED 31.12.2010. ANNEXURE A2 A TRUE COPY OF THE LETTER BEARING NO. GR V (1) 30986/09/GW ISSUED BY THE 2ND RESPONDENT TO APPLICANT TO APPEAR FOR INTERVIEW DATED 24.10.2013 DATED 11.09.2013. ANNEXURE A3 A TRUE COPY OF THE RANK LIST PUBLISHED BY 2ND RESPONDENT FOR THE POST OF HSST HISTORY (JUNIOR) AS RANK LIST OF 226/14/SS SPL. ANNEXURE A4 A TRUE COPY OF THE RANK LIST PUBLISHED BY 2ND RESPONDENT FOR THE POST OF NVT HISTORY (JUNIOR) AS RANK LIST NO.378/14/SS SPL. ANNEXURE A5 A TRUE COPY OF APPOINTMENT CHART ISSUED BY THE 2ND RESPONDENT APPOINTING CANDIDATES TO THE POST OF HSST HISTORY (JUNIOR). ANNEXURE A6 A TRUE COPY OF THE RTI APPLICATION SUBMITTED BY VINAYA KUMAR TO DIRECTOR HSST DATED 11/09/2017. ANNEXURE A6(A) A TRUE COPY OF RTI REPLY GIVEN BY OFFICE OF HSST DIRECTOR TO VINAYA KUMAR DATED 25.09.2017. ANNEXURE A7 A TRUE COPY OF THE RTI REPLY DATED 07.09.2016 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A8 A TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT BY THE APPLICANT.** O.P.(KAT) No.82/2021 30 |**ANNEXURE A9**|**A TRUE COPY OF THE REPRESENTATION**| |---|---| ||**SUBMITTED BEFORE THE 1ST RESPONDENT BY**| ||**APPLICANT.**| |**EXHIBIT P3**|**A TRUE COPY OF THE MA. NO.1844 OF 2019**| ||**FILED BY PETITIONER DATED 11.10.2019.**| |**ANNEXURE A10**|**A TRUE COPY OF THE PROCEEDINGS OF 3RD**| ||**RESPONDENT AS NO.E4/873/2007 ADVISING**| ||**SUBASH KUMAR S. TO THE POST NVT IN**| ||**HISTORY DEPARTMENT DATED 09.08.2018.**| |**ANNEXURE A11**|**A TRUE COPY OF THE PROCEEDINGS OF 3RD**| ||**RESPONDENT AS NO. E4/873/2007 DATED**| ||**09.08.2018 ADVISING SANDEEP SOMANATH TO**| ||**THE POST NVT IN HISTORY DEPARTMENT.**| |**EXHIBIT P4**|**A TRUE COPY OF THE M.A. NO.72 OF 2020**| ||**FILED BY PETITIONER DATED 09.01.2020.**| |**ANNEXURE A12**|**A TRUE COPY OF THE REPLY NO. KLRIV(1)**| ||**2308/14 DATED 07.09.2016 FROM THE**| ||**REGIONAL OFFICER, KERALA PUBLIC SERVICE**| ||**COMMISSION.**| |**ANNEXURE A13**|**A TRUE COPY OF THE RTI REQUEST DATED**| ||**26/08/2019 FILED BY THE APPLICANT**| ||**BEFORE THE PSC REGIONAL OFFICER.**| |**ANNEXURE A14**|**A TRUE COPY OF THE REPLY NO.KLR4-1/**| ||**50014/2018-KPSC-ROKLM DATED 23/09/2019**| ||**FROM THE PSC REGIONAL OFFICER TO THE**| ||**APPLICANT.**| |**ANNEXURE A15**|**A TRUE COPY OF THE RTI REQUEST DATED**| ||**26/08/2019 MADE BY THE APPLICANT BEFORE**| ||**THE STATE PUBLIC INFORMATION OFFICER OF**| ||**3RD RESPONDENT.**| |**ANNEXURE A 16**|**A TRUE COPY OF THE REPLY NO.E4/6862/19**| ||**DATED 03/09/2019 BY THE STATE PUBLIC**| ||**INFORMATION OFFICER OF THE DIRECTORATE**| ||**OF GENERAL EDUCATION.**| |**ANNEXURE A17**|**A TRUE COPY OF THE NOTICE KLR IV (1)**| ||**2308/14 DATED 30.10.2015 FROM THE**| ||**REGIONAL OFFICE OF KERALA PUBLIC**| ||**SERVICE COMMISSION TO BIJISHA K.P.**| |**ANNEXURE A17 (A)**|**A TRUE COPY OF THE LETTER NO.KLR IV (1)**| ||**2308/14 DATED 30.10.2015 FROM THE**| ||**REGIONAL OFFICER OF KERALA PUBLIC**| ||**SERVICE COMMISSION TO AEESH K.**| |**ANNEXURE A 18**|**A TRUE COPY OF THE REPLY NO.KLR4-1/**| ||**50014/2018-KPSC-RCKLM DATED 21/10/2019.**| O.P.(KAT) No.82/2021 31 |**ANNEXURE A19**|**A TRUE COPY OF THE REPLY DATED**| |---|---| ||**19/11/2019 FROM THE APPELLATE AUTHORITY**| ||**(UNDER RIGHT TO INFORMATION ACT OF**| ||**KERALA PUBLIC SERVICE COMMISSION TO THE**| ||**APPLICANT).**| |**ANNEXURE A20**|**A TRUE COPY OF THE APPLICATION UNDER**| ||**RIGHT TO INFORMATION ACT DATED**| ||**21/09/2019 MADE BY THE APPLICANT BEFORE**| ||**THE PRINCIPAL, GHSS KURICHY.**| |**ANNEXURE A21**|**A TRUE COPY OF THE REPLY DATED**| ||**25/09/2019 BY THE PRINCIPAL GHSS,**| ||**KURICHY.**| |**ANNEXURE A22**|**A TRUE COPY OF THE RTI REQUEST DATED**| ||**21/09/2019 FROM THE APPLICANT TO THE**| ||**PRINCIPAL GVHSS, MURIKKUMVAYAL.**| |**ANNEXURE A23**|**A TRUE COPY OF THE REPLY DATED**| ||**21/09/2019 TO THE APPLICANT FROM THE**| ||**PRINCIPAL GVHSS MURIKKUMVAYAL.**| |**EXHIBIT P5**|**A TRUE COPY OF THE REPLY STATEMENT**| ||**DATED 25.10.2019 FILED BY THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P6**|**A TRUE COPY OF LETTER ISSUED TO**| ||**BIJISHA.K.P. BY 2ND RESPONDENT DATED**| ||**30/10/2015.**| |**EXHIBIT P7**|**A TRUE COPY OF LETTER ISSUED TO**| ||**ANEESH.K., BY 2ND RESPONDENT DATED**| ||**30/10/2015.**| |**EXHIBIT P8**|**A TRUE COPY OF ROTATION CHART FOR**| ||**GENERAL RECRUITMENT ISSUED BY PUBLIC**| ||**SERVICE COMMISSION.**| **RESPONDENTS' ANNEXURE:NIL**