W.P.(C) No. 29194 of 2007 (A)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930** ## **WP(C).No. 29194 of 2007(A)** **---------------------------------------PETITIONER(S):** - **-------------------------** ## **1. VIJAYAKUMAR C.R., AGED 36,** **S/O.CHELLAN NADAR,CHUNDAVILLA THEKKE PUTHENVEEDU, OLATHANNI, NEYYATTINKARA.P.O., TRIVANDRUM.** ## **2. CHANDRAKUMAR.T.,AGED 36,** **S/O.THANKAPPAN PILLAI, GANGA NADUVETH,NEMOM.P.O.,TRIVANDRUM.** **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** ## **RESPONDENT(S):** - **---------------------------** **1. THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,SECRETARIAT,TRIVANDRUM.** ## **2. CHIEF ENGINEER,** - **PUBLIC WORKS DEPARTMENT (ADMINISTRATION),TRIVANDRUM.** **3. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM,TRIVANDRUM,REPRESENTED BY ITS SECRETARY.** ## ***ADDL.R4 IS IMPLEADED:** - **R4. SAJEEV.P.K., S/O.N.C.KRISHNAN, U.D.CLERK, REGIONAL ARCHIVES, ERNAKULAM, KOCHI – 11, RESIDING AT VADASSERIKUNNU PARAMBIL, CHOTTANIKKARA P.O., KANAYANNUR, ERNAKULAM.** - **(*ADDL. R4 IS IMPLEADED AS PER ORDER DTD. 16/01/2008 IN I.A.NO.16641/2007)** - **GOVERNMENT PLEADER SMT.ANU SIVARAMAN FOR R1 & 2** - **ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R3 DR.K.P.KYLASANATHA PILLAY FOR R.4** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.29194/2007 A** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE NOTIFICATION APPEARED IN MATHRUBHUMI EMPLOYMENT NEWS DTD. 11/08/01. EXT.P2: COPY OF THE ORDER DTD. 16/03/05 ISSUED BY THE FIRST RESPONDENT. EXT.P3: COPY OF THE RANK LIST OF CANDIDATES FOR THE POST OF DIVISIONAL ACCOUNTANT IN THE KERALA GENERAL SERVICE PUBLISHED BY THE 3RD RESPONDENT.** **EXT.P4: COPY OF THE ORDER DTD. 16/05/2005 IN WP(C) 14455/05. EXT.P5: COPY OF THE ORDER DTD. 17/05/05 IN WP(C) 13978/05. EXT.P6: COPY OF THE JUDGMENT IN WP(C) NO.14455/05 AND CONNECTED CASES DTD. 11/04/07.** **EXT.P7: COPY OF THE ORDER DTD. 17/08/07 BY THE FIRST RESPONDENT. EXT.P8: COPY OF THE ORDER DTD. 5/09/2007 ISSUED BY THE 3RD RESPONDENT.** **EXT.P9: COPY OF THE LETTER DTD. 22/08/07 ISSUED BY THE FIRST RESPONDENT.** **EXT.P10: COPY OF THE LETTER DTD. 22/08/07 ISSUED BY 3RD RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** - **EXT.R4(A): COPY OF THE INTERIM ORDER OF THE HON'BLE SUPREME COURT IN SLP.NO.11673/2007 DTD.1/10/2007.** ## **/TRUE COPY/** **P.A.TO JUDGE** _Kss_ ## **P.N.RAVINDRAN, J.** ------------------------------- W.P.(C) No.29194 of 2007 ------------------------------- Dated this the 14[th] November, 2008. ## **J U D G M E N T** Heard Sri.George Cheriyan, the learned counsel appearing for the petitioners, Sri.Alexander Thomas, the learned Standing Counsel appearing for the Kerala Public Service Commission and Smt.Anu Sivaraman, the learned Government Pleader appearing for the respondents. 2. By Ext.P1 notification dated 2.7.2001, published in the Kerala Gazette dated 24.7.2001, the Kerala Public Service Commission, hereinafter referred to as the 'Commission' for short, invited applications from eligible persons for appointment to the post of Divisional Accountant in the Kerala General Service. The methods of appointment prescribed were (i) by transfer from Junior Superintendents of the Public Works Department, Harbour Engineering Department and Irrigation Department (ii) by direct recruitment, and (iii) by transfer from other service. The petitioners applied pursuant to Ext.P1 notification. They were **W.P.(C) No.29194 of 2007** 2 selected and included in Ext.P3 ranked list that came into force on 23.2.2004. 3. While the ranked list was in force, the Government issued Ext.P2 order dated 16.3.2005 directing that if the required number of candidates are not available for appointment by transfer, the deficiency can be made good by appointing direct recruits included in Ext.P3 ranked list. Ext.P2 was challenged in W.P.(C) Nos.13978/2005, 14455/2005, 18518/2005 and W.P.(C) No.27952 of 2006. By Ext.P5 interim order passed on 17.5.2005in W.P.(C) No.13978/2005, this Court directed the Commission not to advice direct recruits for appointment as Divisional Accountants in the vacancies available for other categories of applicants. By Ext.P4 interim order passed on 16.5.2005 in W.P.(C) No.14455 of 2005, this Court while staying the operation of Ext.P2 [Ext.P7 in W.P.(C) No.14455/2005] further directed the Commission not to make any advice against vacancies remaining unfilled for want of departmental candidates until further orders. By Ext.P6 **W.P.(C) No.29194 of 2007** 3 judgment delivered on 11.4.2007, the writ petitions were dismissed. By then, the ranked list cease to operate and its validity expired on 22.2.2007. Taking note of the said fact, in Ext.P6 judgment, this Court directed the Commission to advice direct recruits against 44 vacancies of Divisional Accountants reported to it by the Government in letter dated 19.4.2005. The said direction was complied with. The petitioners contend that some of the candidates thus advised did not join duty and therefore the Commission should have advised candidates against those non joining duty vacancies also. In this Writ Petition, the petitioners pray for a writ in the nature of mandamus commanding the Commission to advice direct recruits against the non joining duty vacancies. They also seek a writ in the nature of mandamus commanding the respondents to appoint them against the non joining duty vacancies. ## 4. The petitioners have a larger contention that since direct recruits could not be advised during the period from 16.5.2005 to 11.4.2007, when Exts.P4 and P5 interim **W.P.(C) No.29194 of 2007** 4 orders passed by this Court were in force, the validity of the ranked list has to be extended by a similar period, and, therefore, the non joining duty vacancies reported to the Commission after Ext.P6 judgment was delivered also have to be filled up by advising candidates included in Ext.P3 ranked list. 5. The Commission has filed a detailed counter affidavit stating that the ranked list cease to operate on 22.10.2007, even before Ext.P6 judgment was delivered and that as directed in Ext.P6 judgment, 44 candidates were advised on 25.5.2007. As regards the non joining duty vacancies, that arose after such advice, the Commission states that the said vacancies were reported by the Government only on 16.10.2007 and therefore, no advice could have been made against the said vacancies from Ext.P3 ranked list. 6. As regards the petitioner's contention that the validity of the ranked list should be extended for the period during which the interim orders passed by this Court were in force, the Commission contends that under the Rules of **W.P.(C) No.29194 of 2007** 5 procedure, the validity of a ranked list can be extended only within the period of its normal validity and that too only if there was a ban of appointments issued by the Government preventing the appointing authority from reporting vacancies and making appointments. The Commission also contends that the Commission cannot take note of the period during which it was restrained from making advices of direct recruits and suo motu extend the validity of the list. 7. From the materials on record, it is evident that by Exts.P4 and P5 interim orders, the advice of direct recruits from Ext.P3 ranked list was stayed from 16.5.2005 till 11.4.2007. By Ext.P6 judgment delivered on 11.4.2007, this Court, while repelling the challenge to Ext.P2 Government order, directed the Commission to advice direct recruits against the 44 vacancies reported to it by the Government in the letter dated 19.4.2005. The second petitioner herein was one among the respondents in W.P.(C) No.14455/2005. Though this Court had by Exts.P4 and P5 restrained the Commission from advising direct recruits, **W.P.(C) No.29194 of 2007** 6 when Ext.P6 judgment was delivered, this Court did not direct the Commission to extend the validity of the ranked list. Further, by the time Ext.P6 judgment was delivered, the ranked list had ceased to be in force. Therefore, in the absence of a specific direction issued by this Court in Ext.P6 judgment, the Commission was not bound to extend the validity of the list. 8. The Apex Court has in **Thulaseedharan v. K.P.S.C.** (2007 (3) KLT 19 (SC) held that the Commission can extend the validity of the ranked list only if it takes a decision in that regard while the ranked list was in force. The Apex Court has also held that the Commission has no power to revive or keep alive an expired ranked list. In the light of the decision referred above, the Commission could have extended the validity of Ext.P3 ranked list, only if it had taken a decision in that regard before 22.10.2007, and that too, if there was a ban on reporting of vacancies and consequential ban on appointment to Government Service. In the instant case, no such contingency had arisen. Therefore, I find no merit in the claim made by the **W.P.(C) No.29194 of 2007** 7 petitioners that the Commission was bound to extend the validity of the ranked list, taking note of the interim orders of stay passed by this Court in the writ petitions challenging Ext.P2 Government Order. 9. The next contention raised by the petitioners is that the non joining duty vacancies which arose after Ext.P6 judgment and which were reported to the Commission on 16.10.2007 also ought to have been filled up by advising candidates from Ext.P3 ranked list. I am afraid, there is no merit in the said contention as well. This Court has in **Babu v. Public Service Commission** (1996(1) KLT 349), **Kerala Public Service Commission v. Shanil Kumar** (2002(1) KLT 604) and **Lal Sudheer v. Kerala State Road Transport Corporation** (2003(1) KLT 329) held that advices against non joining duty vacancies can be made only if such vacancies were reported to the Commission before the expiry of the ranked list. In the instant case, the ranked list ceased to be in force on 22.10.2007. The non joining duty vacancies were admittedly 8 ## **W.P.(C) No.29194 of 2007** reported only on 16.10.2007. Therefore, the Commission was not bound to advice candidates against the said vacancies. The Commission also could not have on its own made any such advice. Such being the situation, no relief can be granted to the petitioners. The Writ Petition fails and is accordingly dismissed. **P.N.RAVINDRAN, JUDGE** ## **nj.**