Sivaprasad G. and others v. Arun S. and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 7TH DAY OF DECEMBER 2017 / 16TH AGRAHAYANA, 1939 OP(KAT).No. 219 of 2017** **OA.1430/2016 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **PETITIONERS:** - **1 SIVAPRASAD G., AGED 38 YEARS, S/O GOPINATHAN N., SIVA NIVAS, PADA NORTH, KARUNAGAPPALLY, KOLLAM-690518.** - **2 UMESH K.K., AGED 38 YEARS, S/O GOPALAN K.K., KUTTIKUNNUMMAL, THANDORAPARA, KOZHIKODE-673526.** - **3 BINDHU B., AGED 41 YEARS, S/O BHASKARAN K., MUNDAKATHARAYIL, AZHEEKKAL P.O., PRAYAR (VIA.) KOLLAM-690547.** **BY ADVS. SRI.P.K.SURESH KUMAR (SR.) SRI.K.SHAJ** **SRI.RENJIT GEORGE SRI.S.AJAY KUMAR SMT.ANJU MOHAN** **SRI.C.IJLAL SRI.ASWIN T.SURESH** ## **RESPONDENTS:** - **1 ARUN S., S/O A. SATHYASEELAN, RESIDING AT ARUN BHAVAN, KOMALAMKUNNU, PUNALUR, KOLLAM-691305.** - **2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, STATUE, THIRUVANANTHAPURAM-695001.** **OP(KAT).No. 219 of 2017** - **3 THE DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS BHAVAN, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033.** - **4 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THULASI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004.** ## **R1 BY ADVS.SRI.V.A.MUHAMMED** **SRI.M.SAJJAD** **R2 & R3 BY SR. GOVERNMENT PLEADER SRI.P.N.SANTHOSH** **R4 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 07-12-2017, ALONG WITH O.P.(KAT).255/2017,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **OP(KAT).No. 219 of 2017** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**P1**|**TRUE COPY OF ORDER DATED 23.2.2017 IN O.A.1430/2016 PASSED BY KERALA**| |---|---| ||**ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM**| |**P2**|**TRUE COPY OF ORIGINAL APPLICATION NO.1430/2016 DATED 28.6.2016 FILED**| ||**BY THE 1ST RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL,**| ||**THIRUVANANTHAPURAM**| |**P3**|**TRUE COPY OF REPLY STATEMENT FILED ON BEHALF OF THE 3RD RESPONDENT**| ||**IN THE ORIGINAL APPLICATION AND DATED 31.10.2016**| |**P4**|**TRUE COPY OF ADDITIONAL REPLY STATEMENT FILED ON BEHALF OF THE 3RD**| ||**RESPONDENT IN THE ORIGINAL APPLICATION AND DATED 8.12.2016**| |**P5**|**TRUE COPY OF ORDER DATED 25.11.2016 IN O.A.2299/2016 PASSED BY**| ||**KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM**| ## **RESPONDENT(S)' EXHIBITS** |**R1(A)**|**TRUE COPY OF THE INFORMATION SUBMITTED BY THE DIRECTOR OF COLLEGIATE**| |---|---| ||**EDUCATION UNDER RIGHT TO INFORMATION ACT 2005**| |**R1(B)**|**TRUE COPY OF THE CIRCULAR NO.30/2003 DATED 1.12.2003**| ||**TRUE COPY**| ||**P.S. TO JUDGE**| **EL** ## **CR** P.R.Ramachandra Menon & Devan Ramachandran, JJ. -------------------------------------------------- ## O.P.(KAT)Nos.219 & 255 of 2017 -------------------------------------------------- Dated this the 7[th] day of December, 2017 ## **JUDGMENT** ## **Devan Ramachandran, J.** A very peculiar set of circumstances are shown in one of the original petitions, wherein, a candidate, who is included in the supplementary list prepared by the Public Service Commission for appointment to the post of Lecturer in Commerce in the Kerala Collegiate Education Department, has made a prayer that the main list be expanded to include larger number of persons on the assertion that the number of vacancies available is much higher than what is stated by the PSC. At first blush, it might look surprising that a person in supplementary list prays that the main list be expanded , but on a closer scrutiny it becomes obvious that such prayer is founded on the hope that once the main list is expanded, the candidates in the supplementary list could hope for being advised since extortion of the main list would lead to the OP(KAT) 219 & 255/17 2 supplementary list rendering inoperative thereafter. Since the prayer in this original petition is rather unusual, we have considered the specific assertions and contentions with great care and circumspection. These original petitions are impelled against the order of the Kerala Administrative Tribunal in O.A.No.1430/2016 dated 23.02.2017. One among the above original petitions, namely O.P. (KAT)No.225/2017, has been filed by the Kerala Public Service Commission, which was the fourth respondent in the original application and the other has been filed by the candidates included in the short list in question in these cases, by obtaining leave from this Court, because they were not arrayed as respondents in the original applications. The essential challenge in the original application mounted by the applicant, who is shown as the first respondent in both these cases, was against a notification issued by the PSC dated 07.11.2015 publishing a 'short list' containing a main list and a supplementary list of candidates who were found provisionally eligible to be called for OP(KAT) 219 & 255/17 3 interview for selection to the post of Lecturer in commerce – State wide in the Kerala Collegiate Education Department on UGC Scale. The said list was prepared on the basis of an Objective Type Test (OMR) held on 08.08.2014. We are told that pursuant to the decision taken by the PSC on 18.05.2013, the list was prepared including 141 candidates in the main list and 408 candidates in the various supplementary lists. The applicant/first respondent appeared to have approached the Tribunal with a prayer that the list be expanded to include at least 300 candidates in the main list and such enhanced sufficient number of candidates in the supplementary lists on the assertion that there more than 128 vacancies to be filled up as on June 2016. The learned Tribunal, on a consideration of all the materials and pleadings available on record and accepting the case of the applicant that there are 128 vacancies as on June 2016 for being filled up and also taking into account the admitted position that 175 candidates were appointed from the earlier final rank list, concluded that the present list created by the PSC is too short and that it requires to be expanded. Consequently, the original OP(KAT) 219 & 255/17 4 application was allowed, directing the PSC to publish a fresh unified short list, including 'more number of candidates so as to meet the requirement of the appointing authority'. The PSC and the persons included in the main list, as we have already indicated above, have filed these original petitions assailing the conclusions of the learned Tribunal on various grounds but primarily that it is based on conjunctures and surmises rather than on established facts. We have heard the learned Senior Counsel Sri.P.K.Sureshkumar, assisted by Sri.K.Shaj, appearing for the petitioner in O.P.(KAT)No.219/2017; Sri.P.C.Sasidharan, learned counsel for the PSC; Sri.M.Sajad, learned counsel for the first respondent in both cases and the learned Government Pleader for the official respondents. The narration of facts in the Original Application made by the first respondent, as the applicant before the learned Tribunal, appears to be on completely hypothetical assumptions. He admits that he is included in the supplementary list relating to the Other Backward Classes. His contention is that the main list is too short and we OP(KAT) 219 & 255/17 5 understand that his apprehension appears to be that if the main list is exhausted, then the supplementary would cease to have effect and therefore, that he would not get an option of being selected. The learned counsel for the first respondent concedes fairly that the first respondent had approached the Tribunal being under the apprehension that if there are sufficient number of OBCs in the main list itself, his chances of being accommodated from the supplementary list would be effaced and that it is in such circumstance that he had filed the original application seeking a prayer that the main list be expanded. The intention behind this prayer is obvious that it is only if the main list is sufficiently expanded to provide for a large number of vacancies for being appointed, that persons in the supplementary would have a chance to continue to have the aspiration for appointment. We notice from the order of the learned Tribunal, impugned in these original petitions, that the directions contained therein were issued primarily because the learned Tribunal accepted that there are 128 vacancies, as on June 2016, for being filled up and because the PSC has conceded in OP(KAT) 219 & 255/17 6 its pleadings that from the previous rank list 175 candidates have been appointed. The learned Tribunal has concluded that since 175 candidates had been earlier appointed from the previous rank list, it would only be proper that the PSC take such factum also into account while finalising the fresh list. The learned counsel for the PSC opens his submissions by saying that none of the factors that have been relied upon by the learned Tribunal is based on factual circumstances but that they are edificed on mere hypothesis and surmises. He asserts that there is nothing on record to indicate that there are 128 vacancies available for being filled up as on June 2016. He points out that even as per the pleadings made by the first respondent, with specific reference to the information that he obtained, a copy of which has been produced on record as Exhibit R1(a), the number of vacancies cannot in any manner exceed 42. According to him, therefore, taking the vacancies to be 42, the 114 candidates included in the main list would be sufficient to cater to the available vacancy position. The learned counsel for the PSC, however, continues to maintain that the information obtained by the first OP(KAT) 219 & 255/17 7 respondent is not credible because according to him, at the time when the short list was finalised only 14 vacancies were reported to them and he says that against this 14 vacancies the PSC has included 140 candidates in the main list. He adds that there are 148 candidates included in the supplementary list and according to him, even though they have called it as the main list and supplementary list, they operate as one and that they should be treated as being a composite one. The learned counsel thus reiterates that since 149 candidates are included in the short list, it would be sufficient to fill up the vacancies that are now available. The learned Senior Counsel appearing on behalf of the petitioners in O.P.(KAT)No.219/2017 submits that all his clients are persons who are now included in the main list. He says that they have been waiting for an opportunity of being appointed for the last several years that the directions given by the learned Tribunal, in the order impugned in these original petitions, would operate to their detriment and that they would be now forced to continue to wait indefinitely until the process is completed as per the directions. He supports OP(KAT) 219 & 255/17 8 the submissions made by the learned counsel for the PSC that the number of vacancies that are sought to be filled up through this process is definitely less than what is now asserted by the first respondent and according to him, even assuming that the vacancy position is 42, as is asserted by the first respondent through the information obtained by him in Exhibit R1(a) document, inclusion of 140 persons in the main list and 408 candidates in the supplementary list would be more than sufficient. In addition to this, he points out that there was an earlier challenge to the same short list by certain other candidates which was refused by the learned Tribunal in Exhibit P5 order. We have examined this order and find that even though the applicants are different, the rank list is exactly the same as the one which is called into question in these proceedings and that the contentions raised therein were also more or less in pari materia. The learned counsel for the first respondent contends, in response to the above submissions, that the reason why the first respondent has been compelled to approach the learned Tribunal is, even though he is included in the supplementary OP(KAT) 219 & 255/17 9 list, his chances for being considered for appointment would be attenuated with the main list being so short. According to him, if the main list is exhausted quickly then the supplementary list also would fall and no one could be appointed from that list. He also alleges that there are a number of persons in the main list, who are not properly qualified for want of NET and therefore that, once the interview is completed, the list would be constricted, which would cause further detriment. As regards the vacancy position is concerned, it is the specific contention of the first respondent, relying upon Exhibit R1(a) information that was obtained from the authorities, that there were at least 42 vacancies in June 2016 and per him, since the rank list, that will come into operation through the process, would be alive till 2020 or so, it is only probable and possible that the number of vacancies would at least double or triple in the final analysis. He, therefore, contends that the learned Tribunal was right in assessing the vacancy position to be much larger than what is stated by the PSC and in directing that a unified short list be re-published expanding the number of persons OP(KAT) 219 & 255/17 10 included in the main list and in the supplementary list. We have considered the syllogistic submissions made by the learned on either side very closely. We are certain that the order, impugned in these original petitions, has proceeded on an assumption that the vacancy position is about128 as on day. This is very clear from the order of the learned Tribunal and if that was indeed a fact, then we would not have found anything wrong in the directions now given. However, the problem that we now see is that there is nothing on record to establish conclusively that the vacancy position is as contended by the first respondent and that it is contrary to the statements made by the PSC. The PSC has filed a reply statement before the learned Tribunal, where they say that at the time of taking a decision, as to how many candidates are to included in the short list, only 14 vacancies were reported to the post. However, they concede that in the previous rank list for the post of Lecturers in Commerce, which was brought into force on 30.09.2010, 139 candidates were included in the main list. They further concur that from the said list, 175 candidates were advised and that it OP(KAT) 219 & 255/17 11 was exhausted on 11.02.2015. We see that this is the basis on which the learned Tribunal has then made the directions in the impugned order because the learned Tribunal presumably thought that if the earlier rank list was able to provide for 175 appointments, then the present one should contain sufficient number of persons in the main list and supplementary list to cater to such minimum vacancy position or more. We are, however, of the view that this reasoning of the learned Tribunal is not forensically correct. This is because there is nothing to show that the stand of the PSC, that there were only 14 vacancies at the time when the short list was brought in is wrong. In any event, going by Exhibit R1(a) information obtained by the first respondent, the available vacancies are not more than 42, even assuming that the said information is correct, to which the present process should relate to. Going by both these figures, it is certain that the main list, which now contains 140 candidates with an additional 408 candidates in the supplementary list, would be sufficient to provide for appointment to the available vacancies when they are so OP(KAT) 219 & 255/17 12 advised. Quad hoc the contention of the learned counsel for the first respondent that the main list now published contains persons who are not qualified, in our view, is completely without basis. We do not see anything on record to show this conclusively and not even an attempt has been made by the first respondent to place anything to impeach the credentials of any of the persons included in the rank list. Be that as it may, none of the persons included in the rank are parties to these original petitions and it would not be possible for us to sit in judgment over their qualifications merely on the basis of the bald assertions made by the first respondent. We are cognizant that the first respondent relies upon two judgments in the Original Application itself, which are produced as Annexures A6 and A7 therein. Annexure A6 is the judgment of the Hon'ble Supreme Court in **Ajith Kumar v. Ramin** (2015 (4) KLT Suppl. 65 (SC)), where the Hon'ble Court was dealing with a situation in which the PSC had a created a rank list based on a preliminary test and a final test under Rule 3 of the PSC Rules of Procedure. The declaration OP(KAT) 219 & 255/17 13 of law in the said judgment is that even if persons are included in the short list prepared after a preliminary screening, when they are assessed under Rule 3 of the Rules of Procedure, they would have to be considered for the main list as well as the supplementary and not by confining to those categories to which they were originally considered when the cut off marks were lowered so as to include them in the preliminary list. We fail to understand how the first respondent has sought to rely on this judgment because the facts involved is completely different and we do not see any similarity that can be even whispered by the first respondent so as to make the ratio in that judgment applicable here. Similar is the case with respect to Annexure A7, which is the judgment of the Hon'ble Supreme Court in **State of Punjab and others v. Manjit Singh and others** (AIR 2003 SC 4580). We have considered the ratio of this judgment also. But again we fail to comprehend how the applicant asserts that the ratio of this judgment is applicable on the facts of this case. We cannot see any reason why the ratio in **Manjeet Singh** (supra) would apply to the facts of this case because the facts herein are OP(KAT) 219 & 255/17 14 entirely different from that involved in the precedent cited, which relates to a case of cut off in respect to reserve category candidates. The judgments, therefore, cited by the first respondent would not come to his aid at all and we do not see how the learned counsel for the first respondent can contend that it applies to this case. We are, therefore, constrained to repel all those contentions and we, therefore, proceed to see how the directions of the learned Tribunal would impact the facts of this case. The only contention that would possible be available to the first respondent, in the circumstances that we have already seen above, is that going by the admitted number of vacancies, the main list ought to be at least three or five times. The learned counsel for the first respondent relies upon **Ajith Kumar** (supra) to assert that the number of vacancies in the main list should be at least five times and that the number of candidates included in the supplementary list should be another five times that. Even though we hear this submission, it is certain that the judgment of a Full Bench of this Court in **Ravidas v. Public Service Commission** (2009 (2) KLT 295) OP(KAT) 219 & 255/17 15 has considered these issues quite in detail and has watered down the directions contained in **Ajith Kumar** (supra) to some extent and that the position now available is that the rank list need to include three to five times the vacancies and that the rule should contain five times such is not an inflexible one. As we have already indicated above, as per the information available on record, the number of vacancies, at the best, is only 42 and therefore, the inclusion 140 persons in the main list and 408 in the supplementary list, in our view, is completely conducive. At this time, the learned counsel for the first respondent points out to Exhibit R1(b) produced along with the counter affidavit filed in the original petition, which is a circular issued by the PSC on 01.12.2013 and asserts that even as per said the circular, the PSC is obligated to include three times the number of vacancies reported and advised during the pendency of the earlier rank list. We have read this circular but we see that the mandate contained therein is contrary to what is now stated by the learned counsel for the first respondent. The position, in fact, is to the contrary, OP(KAT) 219 & 255/17 16 because the circular says that the earlier position that the fresh rank list should contain three times the number of vacancies reported and advised during the pendency of the previous rank list has been diluted substantially and the PSC has now been vested with the jurisdiction to decide the number of candidates to be included in the main list and the supplementary list on a case-to-case basis, depending upon the vacancies reported to them and such other relevant factors. We see that in the case at hand this is exactly what the PSC has done, because the number of vacancies, going by the assertion of the first respondent, cannot exceed 42. In such circumstances, even assuming that the circular mandates that three times the number of vacancies reported and advised during the pendency of the previous list is required to be maintained by the PSC, we are certain that this is not an inflexible rule because when the number of vacancies are much lower in the fresh process, it would not be necessary to include large number of persons in the short list anticipating that the vacancy position in the present process will be the same or more than what was seen in the previous OP(KAT) 219 & 255/17 17 process. In the forensic scenario as above and in a conspectus of our observations afore, we are compelled to find the order impugned in these original petitions to be contrary to the settled position of law and therefore, liable to be set aside and vacated. We do so. Consequently, the PSC would be empowered to proceed with the proceedings pursuant to the short list in terms of law and the applicable Rules and Regulations. These original petitions are thus ordered. P.R.Ramachandra Menon, Judge Devan Ramachandran, Judge tkv