Subha Rajan v. Registrar General, High Court of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944 WA NO. 600 OF 2022** **AGAINST THE ORDER/JUDGMENT IN WP(C) 16829/2021 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** SUBHA RAJAN AGED 33 YEARS D/O. T.C. RAJAN, THEENDAPARAYIL HOUSE, CHETHIKODE P.O., ERNAKULAM DISTRICT - 682315. BY ADVS. ARUN CHANDRAN GEORGE POONTHOTTAM (SR.) NISHA GEORGE ## **RESPONDENT/S:** 1 THE REGISTRAR GENERAL THE HIGH COURT OF KERALA, HIGH COURT ROAD, MARINE DRIVE, KOCHI, KERALA - 682031. 2 THE SHIRESTADAR, ERNAKULAM DISTRICT AND SESSIONS COURT, PARK AVENUE ROAD, ERNAKULAM, NEAR MAHARAJA'S COLLEGE AND KOCHI, KERALA - 682011. THE SHIRESTADAR, CHIEF JUDICIAL MAGISTRATE'S COURT, DISTRICT COURT COMPLEX, PARK AVENUE, MARINE DRIVE, KOCHI, ERNAKULAM - 682011. [SUBSTITUTED VIDE ORDER DATED 12/10/2021 IN IA 1/2021 IN WPC) WA NO. 600 OF 2022 ..2.. - 3 THE SHIRESTADAR, PALAKKAD DISTRICT AND SESSIONS COURT, PALAKKAD KODUVAYUR, THATHAMANGALAM, MEENAKSHIPURAM HIGHWAY, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, KERALA 678001. THE SHIRESTADAR, CHIEF JUDICIAL MAGISTRATE'S COURT, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD - 678013 [SUBSTITUTED VIDE ORDER DATED 12/10/2021 IN IA 1/2021 IN WPC] - 4 THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM - 695004. - 5 THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, 4TH FLOOR, EASTERN ENTRY TOWER, ERNAKULAM SOUTH RAILWAY STATION, KARSHAKA ROAD, KOCHI - 682016. - 6 THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, CIVIL STATION, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD, KERALA 678013. - 7 SAMANYA P.K. AGED 35 YEARS W/O. RAJEEV N.R., NIKARTHIL HOUSE, KULETTIKKARA P.O., KEECHERY, ERNAKULAM - 682317. ## **OTHER PRESENT:** SRI.ELVIN PETER, SRI.P.C.SASIDHARAN, SC, KPSC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 600 OF 2022 ..3.. ## **ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.** --------------------------------------------------------------------- WA No. 600 of 2022 _(arising out of the impugned judgment dated 14.03.2022 in WP(C).No.16829/2021)_ ---------------------------------------------------------------------- Dated this the 23[rd] day of May, 2022 ## **J U D G M E N T** ## ALEXANDER THOMAS, J. The judgment dated 14.03.2022 rendered by the learned Single Judge in the instant Writ Petition (Civil), WP(C).No.16829/2021, is the subject matter of challenge in this intra court appeal filed under Sec.5(i) of the Kerala High Court Act, 1958. 2. The appellant herein is the first among the two petitioners in the writ petition, the official respondents 1 to 6 in the writ appeal are the respondents 1 to 6 in the writ petition and the 7[th] respondent in the writ appeal is the 2[nd] petitioner in the writ petition. 3. Heard Sri.A.L.Navaneeth Krishnan, learned counsel appearing for the appellant; Sri.P.J.Elvin Peter, learned Standing WA NO. 600 OF 2022 ..4.. Counsel for the High Court of Kerala appearing for respondents 1 to 3; and Sri.P.C.Sasidharan, learned Standing Counsel for Kerala Public Service Commission appearing for respondents 4 to 6. 4. In the nature of the orders proposed to be passed in the writ appeal, notice to the 7[th] respondent (the 2[nd] petitioner in the writ petition) stands dispensed with as she is sailing together with the appellant/1[st] petitioner in the WP(C). 5. The prayers in WP(C) No.16829/2021 filed before this Court on 11.08.2021 are as follows; _“(i) Issue a writ of mandamus or any other writ, order or direction directing the 2[nd] respondent to report 48 vacancies of LDC in Ernakulam District to the 5% respondent for advice and appointment from Exhibit.P-1 rank list;_ _(ii) Issue a writ of mandamus or any other writ, order or direction directing the 3rd respondent to report 6 vacancies of LDC in Palakkad District to the 6[th] respondent for advice and appointment from Exhibit.P-2 rank list;_ _(iii) Direct the 5[th] and 6[th] respondents to issue advice to the Petitioners to these vacancies from Exhibit.P-1 and P-2 rank lists respectively;_ _(iv) Direct the 2[nd] and 3[rd] respondents to issue appointment orders there from to the Petitioners, respectively;_ _(v) Declare that the non reporting of these substantive vacancies of LDC by the 2[nd] and 3[rd] respondents during the currency of Exhibit.P-1 and P-2 rank lists as illegal and arbitrary;_ WA NO. 600 OF 2022 ..5.. _(vi) Pass such other writ, order or direction as prayed for by the petitioners in due course which shall be just and proper;_ **==> picture [27 x 9] intentionally omitted <==** _(vii) award the cost of the petitioner;”_ 6. Learned Single Judge, after hearing both sides, rendered the impugned judgment on 14.03.2022, dismissing the above said writ petition on the ground that all available vacancies during the currency of Ext.P1 rank list dated 02.04.2018 for the post of Lower Division Clerk (“LDC” for short) in various Departments, including the Judicial Department in Ernakulam District and the corresponding Ext.P2 rank list for Palakkad District, which were current up to 04.08.2021, have already been duly reported. It is this judgment, dismissing the writ petition that is under challenge in the present writ appeal. 7. The appellant/1[st] petitioner in the writ petition had been included in Ext.P1 rank list dated 02.04.2018 for the post of LDC in various Departments, including the Judicial Department in Ernakulam District. So also, the 2[nd] petitioner in the writ petition had been duly included in Ext.P2 rank list dated 02.04.2018 for the WA NO. 600 OF 2022 ..6.. post of LDC in various Departments, including the Judicial Department in Palakkad District. It has come to be known that both the above said rank lists, i.e., Exts.P1 and P2, have run maximum currency period of three years and thereafter, have been extended for a further period up to 04.08.2021. Thereafter, those rank lists have been cancelled by the PSC with effect from 05.08.2021. Indisputably, the present writ petition, seeking for a direction to report vacancies, has been filed before this Court on 11.08.2021. By then, the rank lists in question had already expired on 04.08.2021 and there is no question of maintaining any prayer for reporting further vacancies by the appointing authority to the PSC for issuance of advice and appointment of candidates from such time expired rank lists. 8. Further, the specific case argued before us by the learned counsel for the appellant is that the vacancies of LDC, which were earlier reported by the appointing authority concerned to the PSC, which arose out of Ext.R2(a) GO dated 14.11.2012 and Ext.R2(b) GO dated 13.05.2014, were already utilized for advice from the previous rank lists and that those reported vacancies, WA NO. 600 OF 2022 ..7.. which arose out of Exts.R2(a) and R2(b), are separate and distinct from the vacancies, which have subsequently arisen and have been sanctioned as a result of Ext.P3 GO dated 11.06.2021 and that, at the time of issuing Ext.P3 GO, the official respondents 1 to 3 very well knew that Exts.P1 and P2 rank lists were current up to 04.08.2021 and that therefore, they had a legal duty to report such vacancies expeditiously, at any rate, well before the expiry of those rank lists on 04.08.2021. It is only much subsequently that, based on a clarificatory Govt. order issued on 09.11.2021, the 1[st] respondent has issued Ext.P4 proceedings dated 15.12.2021 and 29 such fresh vacancies have been reported by the 2[nd] respondent appointing authority (the Sheristadar) to the District Kerala Public Service Commission, Ernakulam on 20.12.2021, as can be seen from Ext.P5. Hence, in substance, the contention raised by the learned counsel for the appellant is that the vacancies, which were reported earlier, pursuant to Exts.R2(a) and R2(b) GOs, are distinct and separate from the vacancies, which arose out of Exts.P3 and P4, and that the vacancies should have been reported immediately after the issuance of Ext.P3 GO dated 11.06.2021 and WA NO. 600 OF 2022 ..8.. before the expiry of Exts.P1 and P2 rank lists on 04.08.2021. In other words, the appointing authorities, respondents 1 to 3, were under bounden duty to report those vacancies and since the said vacancies are not so reported within the time deadline, orders should be issued by this Court, in exercise of its powers under Article 226 of the Constitution of India, so as to ensure that those vacancies reported on 20.12.2021, as per Ext.P5, should also be utilized for advice to candidates included in the time expired ranked lists as per Exts.P1 and P2, which were current only up to 04.08.2021. Further, it is the admitted case of the appellant that there are no vacancies as far as Palakkad District is concerned. 9. For the time being, we will proceed on the above said factual submission made by the learned counsel for the appellant to the effect that the vacancies covered by Exts.R2(a) and R2(b) on the one hand and Exts.P3 and P4 on the other hand are distinct and separate. If that be so, it is further the factually admitted case of the appellant that the said vacancies referred to in Ext.P3 dated 11.06.2021 were directed to be reported by the 1[st] respondent, as per Ext.P4 dated 15.12.2021, in pursuance of a clarificatory Govt. WA NO. 600 OF 2022 ..9.. order dated 09.11.2021 and further, most importantly, it is the specific conceded case of the appellant that those vacancies covered by Exts.P3 and P4 have been reported by the appointing authority (the 2[nd] respondent) to the PSC only on 20.12.2021, as evidenced by Ext.P5. Going by this factual premise and without getting into its correctness, then, it is the admitted case of the appellant that the claimed vacancies have been reported only on 20.12.2021. That being so, since Ext.P1 rank list had expired on 04.08.2021, there is no question of this Court issuing any direction to the PSC to advise candidates from Ext.P1 time expired rank list as against those claimed vacancies said to have been reported on 20.12.2021. As far as Ext.P2 rank list is concerned to Palakkad District, there is no dispute that all vacancies during the currency of the said list have already been duly reported. 10. On this factual premise, the matter in issue is fully covered against the appellant as per the dictum laid down by the Full Bench of this Court in the case in _**Vimala Kumari** v._ _**State**_ [1994 (2) KLT 47 (FB)], wherein it has been held that if no vacancy requisition report is made by the State to the PSC for advising WA NO. 600 OF 2022 ..10.. candidates during the currency of the rank list, then, the Court, in exercise of its powers under Article 226 of the Constitution of India, cannot compel the PSC to advise candidates after expiry of the said rank list. Similarly, the position has been reiterated by a Full Bench of this Court in the case in _**Kerala Public Service Commission** v._ _**Sheejamol M.C. & Others**_ [2020 (5) KLT 718 (FB)], wherein, after relying on various other decisions, the Full Bench has held that if the vacancies in question have been reported after the expiry of the rank lists, there is no question of PSC advising any candidate from such time expired rank lists, as against such vacancies reported after the currency of the rank list. Similar position has already been followed in the cases in _**Public Service Commission** v._ _**Govindan**_ [2000 (1) KLT 33 (DB)] and _**Balakrishnan** v._ _**PSC**_ [1994 (1) KLT 490 (DB)]. Further, the Full Bench has specifically held in para 10 of the decision in _**Sheejamol** 's_ case ( _supra_ ) [2020 (5) KLT 718 (FB)] that the Court is fortified in taking the view in the light of the recent judgment of the Apex Court in the case in _**Aneesh Kumar V.S. & Others** v._ _**State of Kerala & Others**_ [2020 (7) SCC 301 = 2020 SCC online WA NO. 600 OF 2022 ..11.. 398 = 2020 (2) KLT online 1133 SC], dismissing the civil appeal filed to challenge the Full Bench judgment of this Court in _**Unnikrishnan Nair & Others**_ v. _**State of Kerala & Others**_ [2019 (1) KLT 896 (FB)]. Hence, the conclusion reached by the learned Single Judge, dismissing the writ petition, is not liable for any interdiction. 11. We had earlier requested Sri.Elvin Peter, learned Standing Counsel for the High Court of Kerala, appearing for the official respondents 1 to 3, to get factual instructions as to whether the vacancies covered by Exts.R2(a) and R2(b) on the one hand and the vacancies covered by Exts.P3 and P4 on the other hand are distinct and separate or whether it is the very same vacancies. We make it clear that we have not decided the correctness or otherwise of the assertion made by the learned counsel for the appellant that the vacancies covered by Exts.R2(a) and R2(b) on one hand and the vacancies covered by Exts.P3 and P4 on the other hand are distinct and separate or whether they are the same. That factual issue is left open. 12. Before parting with this case, we would observe that the WA NO. 600 OF 2022 ..12.. 1[st] respondent Registrar General of this Court will issue necessary circular or instructions, after securing orders of the competent authority, to ensure that the pleadings of officials of the DistrictSubordinate Judiciary in their official capacity in litigative proceedings before the court are duly filed only through the learned Advocates empanelled or retained by this Court, on the administrative side and that such officials, on getting notice, will intimate the 1[st] respondent Registrar General of this Court for appropriate action in that regard. The Registry will place a copy of this judgment before the 1[st] respondent Registrar General. With these observations and directions, the above Writ Appeal will stand dismissed. Sd/ALEXANDER THOMAS, JUDGE Sd/SHOBA ANNAMMA EAPEN, JUDGE bka/-