W.P.(C).No.12378/22

W.P.(C).No.12378/22 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 WP(C) NO. 12378 OF 2022** ## **PETITIONERS:** 1 AFSAL V AGED 28 YEARS S/O. YOUSUF, VETTASSERI HOUSE, RANK NO. 258 (MUSLIM SUPPLEMENTARY) REGISTRATION NO B 496297, POOKKOTTUR P.O, MALAPPURAM 676 517 2 SANDHYA MOLE P.K AGED 36 YEARS D/O. KRISHNAN KUTTY, THIRUVATHIRA, VAPPINMUKKU, RANK NO 160 (SC SUPPLEMENTARY) REGISTRATION NO B205085, NEDUMPANA P.O, KOLLAM 691 576 3 SEETHAL T V AGED 40 YEARS D/O. LEKSHMANAN T V, THONDAVEETTIL, RANK NO 63(OBC SALIYA SUPPLEMENTARY) REGISTRATION NO B527485, VADAKKUMPADAM P.O, MALAPPURAM 679 339 4 SMITHA C AGED 43 YEARS W/O. MURALIDHARAN V, GURUKRIPA, CHULLIPARAMBU, MUNDAPURATHU, RANK NO 101 (EZHAVA / THIYYA/ BILAVA SUPPLEMENTARY) REGISTRATION NO B520677, FAROOK COLLEGE P.O, KOZHIKODE 673 632 5 SOUMYA RAJ AGED 31 YEARS W/O. SUMESH N M, VRINDA HOUSE, ANAPPARA, RANK NO 19 (VISWAKARMA SUPPLEMENTARY) REGISTRATION NO B548739, KOTTAKKAD P.O, PALAKKAD 678 732 W.P.(C).No.12378/22 2 6 MANJU B AGED 40 YEARS W/O. MADHU R, POZHIKKAL, PUNTHALA, RANK NO. 32 (DHEEVARA SUPPLEMENTARY) REGISTRATION NO B280049, PURAKKAADU P.O, AMBALAPPUZHA, ALAPUZHA 688 561 7 VYSHNAV R AGED 28 YEARS S/O. RAJAN, GURUKRIPA HOUSE, RANK NO 70 (LW VISION SUPPLEMENTARY, VAIKKILASSERY P.O, VATAKARA 673 104 BY ADVS. S.SABARINADH INDULEKHA JOSEPH ## **RESPONDENT:** KERALA PUBLIC SERVICE COMMISSION THULASI HILLS, PATTOM PALACE P.O, THIRUVANANTHAPURAM 695 004 REPRESENTED BY ITS SECRETARY BY ADV P.C SASIDHARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2022, THE COURT ON 01.11.2022 DELIVERED THE FOLLOWING: W.P.(C).No.12378/22 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.12378 of 2022** **= = = = = = = = = = = = = = = = Dated this the 1[st] day of November, 2022** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- “1. Direct respondent to enlarge the Main List of the Rank List No.12/2020/ER-IV-B dated 14.01.2020 (Exhibit P1) published by the PSC for making appointments to the post of Last Grade Servants (Category No. 113/2017) in various Government owned Companies, Corporations and Boards, within a timeframe to be stipulated by this Hon'ble Court; or in the alternative. 2.Issue a writ, order or direction in the nature of Mandamus commanding the Respondent to bring Exhibit P5 representation to a logical conclusion, after affording an opportunity of being heard to the Petitioners, within a timeframe to be stipulated by this Hon'ble Court at any rate before the exhaustion of the Main List of Exhibit P1 Rank List.” 2.Heard the learned counsel for the petitioner and the learned standing counsel for the respondent. W.P.(C).No.12378/22 4 3. It is submitted that the petitioners are the rank holders included in the supplementary list of Exhibit P1 ranked list prepared for appointment to the post of Last Grade Servants in various Government owned companies, Corporations and Boards. It is contended that the PSC failed to prepare a short list having sufficient number of candidates and therefore the right of the petitioners, who are included in the supplementary list, for getting advice and appointment from the list was frustrated. It is submitted that since there were 2788 vacancies available against which advise was made from the previous ranked list, the PSC ought to have prepared a main list consisting of between 5576 to 8364 persons and that the main list in Exhibit P1 which contains only 3207 candidates is liable to be expanded. It is submitted that several advices had been made from the main list and the validity of the list will expire only in January 2023. However, due to the fact that the persons included in the main list have been advised, the petitioners' chance to get appointment from the supplementary list also is frustrated. The learned counsel for the petitioner, therefore, prays that the non-joining W.P.(C).No.12378/22 5 vacancies from out of the advices already made from Exhibit P1 ranked list are to be filled up from the said ranked list itself, notwithstanding the exhaustion of the main list which was a shortened list. It is further contended by the learned counsel for the petitioners that the ranked list prior to Exhibit P1 was published in the year 2014 and the list before that on 3.7.2006. It is, therefore, contended that there will typically be a gap of 6 to 8 years in the preparation and publication of the next ranked list and that the petitioners will become overaged by then. It is, therefore, contended that the main list of Exhibit P1 is liable to be expanded and all the persons included in the supplementary list are liable to be included in the main list so as to make it possible to make further advises from the list. 4. The learned counsel places reliance on the decisions of a Full Bench of this Court in **Ravidas M and another v. Kerala Public Service Commission and others** [ 2009 (2) KLT 295] and of the Apex Court in **Ashok Kumar Yadav and others v. State of Haryana and others** [(1985) 4 SCC 417] . W.P.(C).No.12378/22 6 5. A detailed counter affidavit has been placed on record by the respondents. It is submitted that the Commission had invited applications for Last Grade Servants in various Companies/Board/Corporations by notification in the Gazette dated 30.5.2017 and conducted OMR test on 7.10.2017 and 28.10.2017 and published a probability list of 3684 candidates in the main list and 7560 candidates in the supplementary lists and 270 candidates in the lists of differently abled categories. After conducting one-time verification and cycling test, the Commission published the ranked list on 14.1.2020 in which 3207 candidates were included in the main list, 6157 candidates in the supplementary list of various reservation communities and 251 candidates in the lists of differently abled categories. It is submitted that the petitioners are persons included in the supplementary list. It is stated that a total of 3163 vacancies were reported as on 4.5.2022 and the Commission has advised 2935 candidates. 228 vacancies are pending advice out of which, 88 vacancies are set apart from filling up from the next ranked list, since no male candidates are available in the present list. It is further submitted that at W.P.(C).No.12378/22 7 the time of issuance of the notification for the impugned selection, no vacancies were pending with the Commission, since the ranked list of the previous selection was live at that time and hence the number of vacancies was not estimated. It is submitted that at the time of approval of the selection proposal only 16 vacancies were available. A total of 2651 candidates were advised in the previous ranked list which was cancelled after completion of 3 years and 15 days. Thus the advice per year is approximately 872. - 6.It is contended that the preparation and finalisation of a ranked list is based on various factors and it is for the Commission to take note of the individual factors and issue ranked list in accordance with the rules of procedure. It is further contended that the writ petition filed after publication of the ranked list without raising any timely challenge to the shortlist is hopelessly belated. - 7.A reply affidavit has been placed on record, pursuant to which an additional affidavit is also filed by the Kerala Public Service W.P.(C).No.12378/22 8 Commission. The learned counsel appearing for the Kerala Public Service Commission would also place reliance on the decision of a Division Bench of this Court in OP(KAT)No.441/2020 dated 17.5.2022. 8.I have considered the contentions advanced. The case of the petitioner is that there were several vacancies available to be filled up and therefore the list ought to have contained at least three times the number of vacancies which were advised from the previous list. It is the specific case of the PSC that there were no vacancies reported to the Commission as on the date of notification and therefore the vacancies notified were shown as not estimated. A Division Bench of this Court in OP(KAT)No.441/2020 has specifically considered the question of the size of the short list and the ranked list of LPSA in various districts pursuant to selection notification issued by the PSC dated 10.9.2014. It was held that matters relating to reporting of vacancies are exclusively within the domain of the appointing authority and the PSC cannot direct the departmental authorities to report vacancies. It was further W.P.(C).No.12378/22 9 held that the question with regard to the size of the short list and the ranked list are matters which are to be decided by the PSC by assessing all relevant factors. Referring to the decision of this Court in **Ravidas's** case as well as all other applicable precedents, it was held that an increase in the number of vacancies after the process of selection has commenced cannot be a ground to contend that the size of the main list is to be enhanced. It was held that the question of the size of the short list and the number of the persons to be included in the main list are matters to be decided by the PSC taking note of the relevant factors and that this Court, exercising judicial review, cannot attempt micromanagement of the functions of the selection authority. The OP(KAT) was, therefore, disposed of with the following directions :- “70. Since the matters relating to verification of available vacancies, sanction of fresh vacancies, sanction of fresh posts and reporting of vacancies are all within the exclusive domain of the Stats Government/departmental authorities concerned, the State authorities have a duty and responsibility to ensure that a robust and effective system is put in place for such process, including for reporting of vacancies by the appointing authority to the PSC, in an effective and time bound manner and well before the expiry of the ranked list, in cases where the ranked lists are current and also to W.P.(C).No.12378/22 10 have an effective arrangement to enable the appointing authorities/departmental authorities to apprise the PSC about, not only the availability of existing vacancies, but also the vacancies that are reasonably expected to arise, at least within the minimum assured life span of one year of the ranked list and the PSC is well equipped to take a decision regarding the size of the shortlist of candidates to be called for interview, inclusive of the main list and supplementary list, etc. Since, ordinarily, time gap between the date on which the PSC has taken the decision regarding the size of the shortlist and the date of the finalization of the ranked list would be at least 6 to 10 months and since the minimum assured life span of the ranked list, as per the operative portion of Rule 13 of the PSC Rules of Procedure, is one year, it will be only in the fitness of things that the appointing authorities/ departmental authorities apprise the PSC about not only the actually ‘existing vacancies to be reported but also the vacancies that are reasonably likely to arise within a period of one and a half years or so from the date/month on which the PSC proposes to take decision regarding the size of the shortlist. 71. Accordingly, the following directions and orders are issued: (i) In order to ensure the above aspects, the competent authority of the State Government should seriously consider these aspects and take steps to constitute a committee of twothree officers of the State Government, two members of the PSC and a few officials of the PSC to ascertain from the various departments like the Dept. of Personnel & Training of the Union Govt. and other Union Gout. Departments responsible for reporting of vacancies to SSC/ UPSC as well as other selection W.P.(C).No.12378/22 11 authorities, like the Union Public Service Commission, Staff Selection Commission of the Government of India and various other State Public Service Commissions, who already have an inbuilt and strong system for timely reporting of vacancies, especially in cases where the norm is that recruitment shall be confined to the notified vacancies in the selection notification, etc. so that a clear picture could be obtained by the State authorities and the PSC, as to how appropriate steps could be introduced in the State of Kerala for providing such a robust and effective system for ascertaining and for the timely reporting of vacancies and also to give relevant information to the PSC to take effective decisions regarding the size of the shortlist. Such effective and proactive steps taken by the State authorities would certainly have immediate and serious improvement in the present system so that Frequently arising objections and complaints of candidates aspiring for selection through the PSC, as above, could be abated or avoided to a substantial or significant level. The State Government will constitute such a committee within six weeks from the date of receipt of a copy of this Judgment. (ii) The afore-committee, after careful examination of the relevant aspects of the matter, may make appropriate recommendations in the matten and place it before the State Government and the competent authority of the State Government in their discretion may consider whether any appropriate decisions are to be taken thereon on the basis of the recommendations of the above committee and if such decision is so taken, then the State Government may also consider whether any Government orders or circulars in that regard are to be W.P.(C).No.12378/22 12 issued for implementing such decisions. So also, the PSC may also consequentially consider whether any revised circulars/norms are to be issued in the matter of deciding on the size of the short list/ probable list, etc. iii) In this process, the Government may also consider as to how the PSC authorities could be given necessary facilities for interacting with the appointing authorities/departmental authorities, to have a precise and clear picture as to whether future probable vacancies are likely to arise at the time of finalisation of the shortlist. We hope and trust that the higher authorities of the State Government will certainly be alive to the concerns and problems ventilated by the unemployed youth, aspiring for public employment, and will take necessary remedial measures, which would only advance public interest and would also go a long way in subserving the enforcement of the constitutional norms as above. The Registry will forward copies of this judgment to the Chief Secretary to Government of Kerala, the Principal Secretary to the Chief Minister and to the Secretary to the Kerala Public Service Commission, for necessary action. With these observations and directions, the above OP(KAT)s will stand finally disposed of.” Having considered the contentions advanced and in view of the directions issued by the Division Bench, I am of the opinion that the prayers, as sought for in the writ petition, cannot be granted. All necessary directions for the future guidance of the Government and the PSC have already been W.P.(C).No.12378/22 **==> picture [12 x 8] intentionally omitted <==** issued by the Division Bench and no further directions can be issued in this writ petition. The writ petition fails and the same is accordingly dismissed. **==> picture [27 x 13] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.12378/22 14 ## **APPENDIX OF WP(C) 12378/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF RANK LIST NO. 12/2020/ER-IV-B DATED 14-01-2020 PUBLISHED BY PSC FOR MAKING APPOINTMENTS TO THE POST OF LAST GRADE SERVANTS (CATEGORY NO 113/2017) IN VARIOUS GOVERNMENT OWNED COMPANIES, CORPORATIONS AND BOARDS Exhibit P2 A TRUE PHOTOCOPY OF THE NOTIFICATION IN CATEGORY NO 113/2017 ISSUED BY THE PSC IN THE OFFICIAL GAZETTE DATED 30-05-2017 Exhibit P3 A TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF THE APPOINTMENT CHART OF CATEGORY NO 113/2017. ROD 111(1) 1292/17 DATED 0402-2022 Exhibit P4 A TRUE PHOTOCOPY OF THE JUDGMENT DATED 17-03-2015 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN WPC NO. 14291 AND 14783 OF 2014 Exhibit P5 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 30-03-2022 AND ITS POSTAL RECEIPTS, SUBMITTED BEFORE THE RESPONDENT True copy PS to Judge