Siju R.S. and Pradeep Kumar M v. State of Kerala and others

**WP(C).No.23193 OF 2019(Y)** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942 WP(C).No.23193 OF 2019(Y)** ## **PETITIONER/S:** |**1**|**SIJU R.S.**| |---|---| ||**AGED 37 YEARS**| ||**S/O.RAGHAVAN PILLAI, KAVILAKATHU VEEDU,**| ||**KOLLIYOKKODU, DURGA LANE, SANTHIGIRI.P.O.,**| ||**THIRUVANANTHAPURAM-695589**| |**2**|**PRADEEP KUMAR.M**| ||**AGED 42 YEARS**| ||**S/O.MANIKANTAN NAIR, MINI SADANAM,**| ||**THATTATHUYMALA.P.O., THIRUVANANTHAPURAM-695614**| ||**BY ADV. SRI.R.T.PRADEEP**| ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001** - **2 SECRETARY DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHPAURAM-695001** - **3 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF REGISTRAR OF CO-OPERATIVE SOCIETIES, RAJAJI NAGAR MARKET ROAD, STATURE, THYCAUD.P.O., THIRUVANANTHPAURAM-695001** - **4 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, RAJAJI NAGAR MARKET ROAD, STATUE, THYCAUD.P.O., THIRUVANANTHAPURAM-695001** - **5 KERALA PUBLIC SERVIE COMMISSION REPRESENTED BY ITS SECRETARY OFFICE OF KERALA PUBLIC SERVICE COMMISSION, PATTOM.P.O., THIRUVANANTHAPURAM-695001** **WP(C).No.23193 OF 2019(Y)** **2** - **6 DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, PATTOM.P.O., THIRUVANANTHAPURAM-695001** - **7 THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK REPRESENTED BY ITS GENERAL MANAGER HEAD OFFICE, EAST FORT, THIRUVANANTHAPURAM-695023** - **8 ADDL.R8- KERALA CO-OPERATIVE BANK, REPRESENTED BY ITS C.E.O. PB NO.6515,CO BANK TOWERS,PALAYAM, THIRUVANANTHAPURAM-695 033(ADDL.R8 IS IMPLEADED AS PER ORDER DATED 13.12.2019 IN IA.1/2019 IN WP(C)).** **R7 BY SRI.THOMAS ABRAHAM SC THIRUVANANTHAPURAM DIST. CO.OP BANK** ## **OTHER PRESENT:** ## **SRI B HARISH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1412-2020, THE COURT ON 18-12-2020 DELIVERED THE FOLLOWING:** **WP(C).No.23193 OF 2019(Y)** **3** ## **JUDGMENT** ## **Dated this the 18th day of December 2020** Petitioners two in number through the instant writ petition has sought indulgence of this Court under Article 226 of the Constitution of India for issuance of the following directions: - “ To issue a writ of mandamus or any other appropriate writ, order or direction to 5[th] and 6[th] respondents to advise candidates from Ext.P2 ranked list for the 16 vacancies reported in compliance of Ext.P1 interim order and Ext.P3 judgment of this Court as expeditiously as possible. - ii) To issue a writ of mandamus or any other appropriate writ, order or direction to respondents 1 to 2 to decide on the validity of vacancies of Peon/Watchman reported for advice from Ext.P2 ranked list by 7[th] respondent in the wake of difference with 5[th] and 6[th] respondents on 7.6.2016 as expeditiously as possible within such time fixed by this Hon'ble Court and to direct the 7[th] respondent to keep the vacancies unfilled till the matter is decided by the Government.” 2. In pursuance of a notification dated 7.12.2011 issued by the Kerala Public Service Commission for the selection of **WP(C).No.23193 OF 2019(Y)** **4** Peon/Watchman in Thiruvananthapuram District Co-operative Bank which contemplated Part–I direct recruitment and Part-II recruitment from Primary Co-operative Societies; both the petitioners applied for Part-II recruitment being qualified regular employees. They were selected and included in the main rank list published by the 6[th] respondent in Part-II as rank Nos.21 and 24 for the post of Peon/Watchman. The period of Ext.P2 list was extended beyond the original period stipulated in the notification and the list expired only on 31.3.2016. The ranked candidates above the petitioners had got appointment in the vacancies reported by 7[th] respondent of 37 in number. Thereafter petitioner filed W.P.(C)NO.5469/2016 before this Court during the validity of Ext.P2 rank list seeking to report 17 vacancies pertain to the post of Peon/Watchman illegally held by party respondents 6 to 23 in that writ petition, notwithstanding the direction to remove them by Registrar and Joint Registrar of Cooperative Societies to enure to the benefit of ranked candidates in the list published by the KPSC. 3. This Court vide order dated 3.6.2016 directed to report 17 vacancies of Peon/Watchman for selection and appointment by KPSC on or before 7.6.2016 in the wake of expiry of rank list, with a condition that advice shall be made only after obtaining further order from this Court. The aforementioned writ petition after lapse of more **WP(C).No.23193 OF 2019(Y)** **5** than two years was disposed of by judgment dated 11.1.2019 by directing the KPSC to make advice of the eligible candidates against the 16 vacancies reported not later than 1 month from the date of receipt of the copy of the judgment. This Court further directed that the Bank will be enjoined to consider the appointment of petitioners in case of substantial vacancies being existed or to retrench them if there are no vacancies to accommodate them on account of downgrading of its classification. The judgment was communicated to the respondents on 28.1.2019. The period of one month expired on 28.2.2019. The Bank has not informed the PSC about the dearth of vacancies of Peon/watchman as on the date of expiry of list on 31.3.2016. The matter was taken in writ appeal No.112/2015, wherein they made a statement admitting 16 vacancies. Since the respondents did not abide by the directions contained in the writ petition, petitioners filed Cont.Case (C) No.770/2019 against 5[th] to 7[th] respondents. In the Counter affidavit filed by the 5[th] and 6[th] respondents in the Contempt case, it is stated that 17 vacancies of Peon/Watchman were provisionally reported by the 7[th] respondent in compliance of the order dated 3.6.2016 in W.P.(C)No.5469/2016 as per letter dated 7.6.2016. The rank list which had come into force on 7.6.2011 was in force for a period of 4 ½ years. According to the Commission, the list ceased to be in force in the midnight on 6.6.2016 **WP(C).No.23193 OF 2019(Y)** **6** ie. on the FN of 7.6.2016. It is also submitted that altogether 22 candidates were advised from Part II Society Category Ranked list. Candidates up to Rank No.17 have been advised under OC turn from Society Category (Part II) Ranked list. The last advice from the Part II Ranked List was made on 29.1.2016 at 1 NJD vacancy. In Paragraph 7 of the counter affidavit, it is stated that as per letter dated 7.6.2016, the General Manager, DCB Thiruvananthapuram had reported 17 provisional vacancies in the post of Peon/Watchman in compliance with the directions in the common interim order dated 3.6.2016 in W.P.(C) Nos.9627 of 2012 and 5469 of 2016, after the period of validity of rank list. 4. Similarly, the Bank stated in the counter affidavit in the contempt petition that on receipt of the direction of this Court, they acted promptly and reported 17 vacancies to PSC on 7.6.2016 itself. It is also submitted that this respondent Bank is still keeping the 17 vacancies of Peon/Watchman unfilled for PSC recruitment in compliance to the interim direction of this Court. This Court had to adjudicate on the expiry of the rank list and in view of the disputed question of fact, the contempt case was closed leaving liberty to the petitioners to approach this Court by filing a fresh writ petition. 5. In fact the calculation done by the respondents is not correct as 2016 was a leap year which has 366 days instead of 365. **WP(C).No.23193 OF 2019(Y)** **7** Thus the rank list would expire only on 7.6.2016 and not on 6.6.2016. Even if 6.6.2016 is the terminal day of validity of rank list, the list will expire in the midnight on 6.6.2016 and vacancies reported to KPSC till the forenoon on 7.6.2016 would be accepted. Thus the decision of the 6[th] respondent is without considering the fact of falling the terminal year in the leap year. Even as per the provisions of the General Clauses Act, half of 365 is 182.5 which has to be rounded up to 183 for finalizing the date of expiry of rank list. Thus the rank list would expire only on 7.6.2016 rather than on 6.6.2016. 6. Learned Counsel for the Bank submitted on the course of the hearing that the contents of the counter affidavit filed in the contempt case be taken as reply in the present writ petition. Learned Counsel for the KPSC also made a similar submission. 7. In rebuttal, learned Counsel for the petitioner submitted that no doubt as per the decision laid down by the Division Bench of this Court as well as Full Bench, on expiry of rank list even during the pendency of the writ petition the court is precluded to issue direction for filling up the posts, but, only in case it is found to be suffering from any mala fide. In **Kerala Public service Commission and another v. Sheejamol M.C. and others [2020 (5) KHC 555]** it is held that such directions can be issued only in exceptional cases and in the rarest of situations considering the peculiar facts of each case. **WP(C).No.23193 OF 2019(Y)** **8** 8. I have heard learned Counsel for the parties and appraised the paper books. It would be appropriate to extract the directions contained in Paragraph 13 and 14 of the common judgment in W.P. (C)NO.9627/2012, 5469/16 and 13916/2018, which read thus: “13. In the afore circumstances, I order WP(C)Nos.5469/2016 and 13916/2018 and direct the competent Authority of the Thiruvananthapuram District Cooperative Bank to consider the entitlement of the petitioners in these two cases for being appointed as per the Rules and as per the roster of PSC to the allegedly available 16 vacancies in the category of Peon/Watchman. If such vacancies were available on the date when the rank list expired namely on 31.03.2016, then certainly the petitioners in these two cases or WPC 9627/12, 5469/16 13916/18 17 such among them, who are entitled and eligible for being appointed to such vacancies, shall be appointed; and thereafter be treated as being retrenched, if the Bank maintains that there are no vacancies presently to accommodate them on account of the downgrading of it classification. By doing so, the petitioners in these two cases will obtain a chance to be reappointed as and when vacancies arise in future and this would be the best way forward for them if there are no vacancies available in the Bank as of now. 14. In fact, the learned counsel for the petitioners in these two cases also affirm that their clients are agreeable to this course of action and they also pray that these writ petitions be ordered so. Resultantly, WP(C)Nos.5469/2016 and 13916/2018 are **WP(C).No.23193 OF 2019(Y)** **9** ordered, directing the PSC to make advice of the eligible candidates, which may or may not include the petitioners in these two WPC 9627/12, 5469/16 13916/18 18 cases, against the 16 vacancies as per their roster, as expeditiously as is possible but not later that one month from the date of receipt of a copy of this judgment; and once such an advice is made, the Bank will be enjoined to consider the appointment of the petitioners or to retrench them in the manner as is directed above. Needless to say, if the Bank informs the PSC that there were no vacancies in the category of Peon/Watchman even as on 31.03.2016, being the date of expiry of rank list, the PSC will not be liable to make advice as ordered above. However, the factum of the petitioners in WP(C)No.9627/2012, having been appointed as Peons/Watchmen earlier and who have now been further promoted as Clerks will not be taken into account by the Bank for this purpose.” 9. No doubt this Court while leaving the question of adjudication of factual aspects in earlier round of litigation granted liberty to the petitioner to file writ petition by bringing the case within the direction contained under Paragraph 13 of the Full Bench ( **Kerala Public service Commission and another v. Sheejamol M.C. and others [2020 (5) KHC 555])** by urging that this court is not precluded in law for issuance of direction to initiate the steps for filing vacancies from the old rank list. In order to appreciate controversy raised it is to be examined by this court whether rank list **WP(C).No.23193 OF 2019(Y)** **10** has expired or not. Para 13 reads thus:- “13. We therefore answer the reference in the following manner: - (I) The judgment in **Public Service Commission** vs. **Govindan** (supra) does not require reconsideration. The judgment conforms in every respect to the law laid down by the Full Bench of this Court in **State of Kerala** vs. **Srikandan** (supra). If this Court were to conclude on final adjudication of the lis that a particular appointing authority has purposefully and with malafide intentions refused to comply with interim directions issued to report certain vacancies before the expiry of the ranked list then, this Court on consideration of individual facts and in the rarest of rare situations may direct appointment of candidates included in the ranked list which has expired, as was done in Sreekandan; (II) 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 Article 226 of the Constitution of India, compel the appointing authority to fill up those vacancies. Circumstances such as financial difficulties, or as in the facts of these cases, orders of statutory authorities resulting in reduction of the number of vacancies or abolition of posts etc. would be good and sufficient reason for the appointing authority to take a decision not to fill up the vacancies. “ 10. Both the Bank and the Kerala Public Service Commission authorities blamed each other regarding issue of communication of **WP(C).No.23193 OF 2019(Y)** **11** the rank list before its expiry. Concededly the rank list by considering four (4) and half years expired on midnight of 6.6.2016 ie. forenoon of 7.6.2016, by taking single calculation which the petitioner in Paragraph 11 of the writ petition has in the first part, taken thereof. But the calculation taken in Paragraph 12 is not correct. While calculating the period of four years, ie. 7.12.2011 is to be reckoned till 6.12.2015. The calculation in the same fashion has to be done and not in the manner, and mode as suggested. For the sake of brevity Paragraph 11 and 12 of writ petition are extracted hereinbelow: “11. The stand of 5[th] and 6[th] respondents that the list expired in the midnight on 6.6.2016 ie. On the FN 7.6.2016 is not factually correct. The 4 and ½ years reckoning from 7.12.2011 would expire only on the midnight on 7.6.2016. The four year period from the date of coming into force of the rank list would expire on 6.12.2015. The half year period has to be reckoned from 6.12.2015. The year of 2016 being a leap year, the total number of days of the year is 366. Hence half of that year would come to 183 days. SO 183 days reckoned from 6.12.2016, that would terminate only on 7.6.2016. The Commission had failed to reckon the terminal year of the rank list falling on leap year. The Commission had fixed 6.12.2015 without reckoning the fact of falling the terminal year in the leap year. 12. Even otherwise the half of 365 days is 182.5, it has to be rounded upto 183 for finalizing the date of expiry of rank list. The Commission had adopted a pedantic approach in declining to advise the candidates from the rank list. Hence **WP(C).No.23193 OF 2019(Y)** **12** the vacancies were reported during the currency of the rank list.” 11. By taking the same calculation from 7.12.2011 (reckoning date) rank list expired on midnight of 7.6.2016. It is settled law, as notice above, that once the period of rank list expires, even the court cannot issue directions for filling up the posts and the exercise has to be undertaken afresh. It is a disputed question of fact as there is no proof on record with regard to dispatch or receipt register of the Bank and the Public service commission, it would require a detailed evidence and mode of proof which cannot be done under the realm of Article 226 of the Constitution of India. Therefore, I do not find any merit in the writ petition. The writ petition is, accordingly, dismissed. ## **Sd/** **AMIT RAWAL JUDGE** **Jm/** **WP(C).No.23193 OF 2019(Y)** **13** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF NOTIFICATION DATED 7.12.2011 BY 6TH RESPONDENT BY WHICH RANKED LIST FOR SELECTION TO THE POST OF PEON/WATCHMAN IN THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK BROUGHT FORTH** **EXHIBIT P2 TRUE COPY OF RANKED LIST DATED 7.12.2011 EXHIBIT P3 TRUE COPY OF ORDER DATED 3.6.2016 IN WP(C)5469/2016** **EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 11.1.2019 IN WP(C)NO.5469/2016** **EXHIBIT P5 TRUE COPY OF AFFIDAVIT FILED ON BEHALF OF RESPONDENTS 5 AND 6 IN CONT.CASE (C)NO.770/2019 DATED 16.4.2019** **EXHIBIT P6 TRUE COPY OF COUNTER AFFIDAVIT DATED 10.06.2019 BY 7TH RESPONDENT EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 25.06.2019 IN CONT.CASE(C)770/2019 IN WP(C)5469/2016**