Sheeba Joseph.T v. State of Kerala, Kerala Public Service Commission, Transport Commissioner, Arun C.D.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **THURSDAY, THE 29TH DAY OF AUGUST 2013/7TH BHADRA, 1935** ## **RP.No. 611 of 2010 (V)** **------------------------------[AGAINST THE JUDGMENT IN W.P.(C).NO.16990/2008 DATED 17/05/2010]** **.................** ## **REVIEW PETITIONER/WRIT PETITIONER:** **----------------------------------------------------------** **SHEEBA JOSEPH.T, SANKOORICKAL HOUSE, ANNAMANADA.P.O., PIN-680 741., THRISSUR DISTRICT.** **BY ADV. SRI. P.S.SUJETH.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETRY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-695 004.** **3. TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONERATE, THIRUVANANTHAPURAM-695 033.** **4. ARUN.C.D., ASSISTANT MOTOR VEHICLE INSPECTOR, O/O. REGIONAL TRANSPORT OFFICER, ERNAKULAM.** **R1 & R3 BY ADVOCATE GENERAL SRI. K.P. DANDAPANI, GOVERNMENT PLEADER SRI. V.K. RAFEEK, R2 BY SRI.P.C.SASIDHARAN, S.C, K.P.S.C,** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 29-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** **R.P.NO.611/2010:** ## **APPENDIX** ## **REVIEW PETITIONER'S EXHIBIT:** **EXT.R1: COPY OF THE APPOINTMENT CHART.** ## **RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.N.RAVINDRAN** , **J.** ## **---------------------------** ## **R.P. No.611 of 2010 IN W.P.(C) No.16990 of 2008 -------------------------Dated this the 29[th] day of August, 2013** ## **O R D E R** The prayer in this review petition is to review the judgment in W.P.(C) No.16990 of 2008 and to direct the Kerala Public service Commission to fill up 25 vacancies of Assistant Motor Vehicles Inspector instead of 22 vacancies as directed in the judgment. 2. The petitioner in W.P.(C) No.16990 of 2008 was an applicant for appointment by direct recruitment to the post of Assistant Motor Vehicles Inspector in the Motor Vehicles Department. She was selected and her name was included as rank No.7 in the supplementary list of Latin Catholic/Anglo Indian candidates in Ext.P1 ranked list published by the Kerala Public Service Commission (hereinafter referred to 'the Commission' for short) on 6.12.2005. The relief sought in the writ petition was a writ in the nature of mandamus commanding the Commission to issue advice memo to her. Such a relief was sought on the averment that applying rules 14 to 17 of Part II of the Kerala State & Subordinate Services Rules, 1958, four candidates should have been advised from the R.P.No.611/2010 2 supplementary list of Latin Catholic/Anglo Indian candidates, that the fourth respondent who is rank No.67 in the main list should have been selected in the open competition turn and not in the reservation turn and that in his place Sri.Joshy T.X, rank No.1 in the supplementary list of Latin Catholic/Anglo Indian candidates should have been advised. She also contended that though five candidates up to rank No.5 in the supplementary list of Latin Catholic/Anglo Indian candidates had been advised by 17.7.2006, it is inclusive of the vacancy given to Sri.Arun C.D., who ought to have been advised in the open competition turn. She further contended that when subsequent advices were made on 17.7.2006 and 25.3.2008, two more Latin Catholic/Anglo Indian candidates ought to have been advised and if that had been done, she would have been advised. 3. A counter affidavit dated 17.10.2008 had been filed on behalf of the Commission refuting the claim made by the petitioner. In paragraph 5 of the said affidavit, the deponent had inter alia averred that advice is pending against 22 vacancies reported by the department. After considering the rival contentions and taking note of the fact that vacancies had been reported prior to the expiry of the ranked list, this Court disposed of the writ petition with a direction to the Commission to advise candidates included in Ext.P1 ranked list R.P.No.611/2010 3 against the 22 vacancies of Assistant Motor Vehicles Inspector referred to in paragraph 5 of the affidavit dated 17.10.2008, if by then, candidates have not been advised against the said vacancies. The main contention raised in this review petition, relying on Ext.R1 appointment chart, is that the number of vacancies reported was 25 and not 22 and therefore, the judgment may be suitably reviewed and corrected by directing advises to be made to 25 vacancies instead of 22 vacancies. It is stated that the Commission had suppressed the fact that 25 vacancies were in existence. 4. An affidavit dated 26.7.2010 has been filed on behalf of the Commission. In paragraph 3 it is stated that the affidavit dated 17.10.2008 was prepared on the basis of the instructions furnished by the Commission as per letter dated 3.10.2008 and as on that day 10 vacancies had been created by G.O.(MS)No.128/08/TD dated 28.6.2008, 9 vacancies were anticipated for the year 2008 and 3 fresh vacancies were in existence and therefore the said details were included in paragraph 5 of the affidavit dated 17.10.2008. The Commission has also stated that later 5 vacancies and yet another vacancy were reported, that advices against the aforesaid vacancies were finalised as on 10.11.2008, that on 10.11.2008, 3 out of the aforesaid anticipated vacancies were not ripe for advice, and only 25 R.P.No.611/2010 4 vacancies were ripe for advice as on 10.11.2008. It is also stated that against the said 25 vacancies, advices were made and that with the advise to 23 out of the 25 vacancies the last unadvised candidate in the main list was advised, that thereby the main list of the ranked list got exhausted and therefore, no further advices were made. The petitioner has not filed a reply affidavit refuting these contentions. The Commission has also stated that the last Latin Catholic/Anglo Indian candidate was advised against the 68[th] turn, that the next available turn is 94 and that the last candidate advised was against the 87[th] turn available to candidates from the open category. 4. I heard Sri.P.S.Sujeth, learned counsel appearing for the petitioner and Sri.P.C.Sasidharan, learned standing counsel appearing for the Kerala Public service Commission. I have also gone through the pleadings and the materials on record. The only contention which was pressed before me during the hearing of the instant review petition is that the reference to 22 vacancies in the judgment sought to be reviewed and in paragraph 5 of the counter affidavit dated 17.10.2008 filed by the Commission is erroneous. Reliance is placed on Ext.R1 in support of the said contention. It is contended that the number of vacancies reported to the commission was 25 and not 22 and therefore the judgment requires to be suitably corrected. In my R.P.No.611/2010 5 opinion, apart from the reasons put forward by the Commission in its affidavit dated 26.7.2010, on other grounds also the review petition is liable to be dismissed. It is evident from the averments in paragraphs 3 to 5 of the affidavit dated 17.10.2008 that the reference was not to the actual number of vacancies that had been reported to the Commission. The reference in paragraphs 3 to 5 of the affidavit dated 17.10.2008 was to the number of vacancies against which advices were pending. The reference in the judgment is also to the vacancies against which advices were pending and not to the actual number of vacancies reported. The petitioner appears to be under the misconception that the Commission had in paragraphs 5 and 6 of the affidavit dated 17.10.2008 averred that 22 vacancies had been reported when as a matter of fact 25 vacancies had been reported. A close reading of paragraphs 3 to 5 of the counter affidavit dated 17.10.2008 would disclose that the stand taken by the Commission was that advices against 22 vacancies reported by the department were pending. The Commission has in paragraph 3 of its affidavit dated 26.7.2010 averred that the petitioner's turn did not arise when advices were made to 23 out of the 25 vacancies and that with the advice made against the 23[rd] vacancy, the main list of the ranked list stood exhausted. The petitioner has not filed a reply affidavit refuting R.P.No.611/2010 6 the averments in the affidavit filed by the Commission. The Apex Court has in **Nair Service Society v. District Officer, Kerala Public Service Commission** [2003 (3) KLT 1126 (SC)] held that non joining duty vacancies cannot be filled up by candidates included in the supplementary lists after the main list of the ranked list is exhausted. Therefore, as the petitioner's turn did not arise before the main list of the ranked list expired, even if there were 25 vacancies, the petitioner would not have been advised. I accordingly hold that there is no merit in the review petition. It fails and is dismissed. No costs. **P.N.RAVINDRAN, (JUDGE)** vps R.P.No.611/2010 7 R.P.No.611/2010 8