WP(C).NO.36005/2009 (U) and connected cases

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **MONDAY, THE 3RD DAY OF JUNE 2013/13TH JYAISHTA 1935** ## **WP(C).No. 36005 of 2009 (U)** **----------------------------** **PETITIONER(S):** - **--------------------------** **1. SANOOJA.K.S., ULLAS VILLA, MANAKARA, SASTHAMKOTTA P.O., PIN-690 521.** **2. KRISHNAKUMAR.G, KRISHNALAYAM, KIDANGAYAM KANNIMEL, N.MYNAGAPURAM P.O., PIN-690 519.** **3. DEEPA.V, D/O.RADHAKRISHNA PILLAI, VALIAZHIKATHU, MANAKARA, SASTHAMCOTTA P.O., KOLLAM.** **4. JYOTHI.S, D/O.P.G.VELAYUDHA KURUP, BODHI, EDAKKAD P.O., KOLLAM.** **5. PRAVEENKUMAR.G.S, SARASWATHY BHAVAN, THODIYOOR NORTH P.O., KARUNAGAPPALLY-690 523.** **6. SHIHABUDHEEN.H, S/O.HAMEEDKUNJU, KURUMPOLIL, MARU SOUTH, ALUMKADAVU P.O., KARUNAGAPPALLY.** **7. SUBHA.P., KADALAZHATHUVEEDU, MALIBHAGOM, CHAVARA SOUTH P.O., KOLLAM.** **8. VINOD.B, S/O.BHASKARAN.N, KURUMPOLIL PADEETTATHIL, MARU SOUTH, ALUMKADAVU P.O., KARUNAGAPPALLY.** **9. SUJITH.P., S/O.PRABHAKARAN PILLAI, KOCHUVEETTIL, MARU NORTH, ALUMKADAVU P.O., KARUNAGAPPALLY.** **10. SREEJA.G.R, D/O.GOPINATHAN PILLAI, JAYAMANDIRAM, VADAKKUMKARA EAST, UMAYANALLOOR P.O., KOLLAM-691 589.** **11. ASHA.S, D/O.C.T.SIVANKUTTY, KRISHNENDU, ADINADU SOUTH, KATTILKADAVU P.O., KARUNAGAPPALLY.** **12. REEJA.L., D/O.N.SUDHAKARAN, KUNNAYYALLIN PADEETTATTIL, NAMBARUVIKALA, ALUMKADAVU P.O., KARUNAGAPPALLY.** **2/-** **sts** **-2-** ## **WP(C)NO.36005/2009** **13. SREELETHA.R, NILAKKAL VEEDU, THAZHATHU KULAKKADA P.O., KULAKKADA, KOTTARAKKARA.** **14. SHEEJA.A.M, MAMPUZHAYATH, NEAR ANCHUMUKKU, PERUMPUZHA P.O., KOLLAM.** **15. SANTHOSH.S, VETTIYIL HOUSE, THRIKKUNNAPUZHA NORTH, KAKKAKKUNNU P.O., SOORANAD SOUTH-690 522.** **16. JAYASREE B.NAIR, MUDEECHAZHIKATHU HOUSE, DECENT JUNCTION P.O., MUKHATHALA,KOLLAM DIST.** **17. MANOJ.K., S/O.K.MADHAVAN NAIR, KANNATH HOUSE, KODAKARA-680 684, THRISSUR DISTRICT.** **18. A.ANILKUMAR, S/O.APPUKUTTAN NAIR, ANTHAPPILLY HOUSE, KAVIL, KODAKARA P.O., THRISSUR-680 684.** **19. P.V.BIJU, S/O.P.R.VELAYUDHAN, PONNAMBY HOUSE, MANAKULANGARA P.O., KODAKARA SOUTH-680 684, THRISSUR DISTRICT.** **20. JAYACHANDRAN.R, J.J.BHAVANAM, S.W.THAZHAVA P.O., KARUNAGAPPALLY, KOLLAM-690 523.** ## **21. SANTHAL WILFRED,** ## **SANTHAL MANDIRAM, MATHILI P.O., KOLLAM-691 601.** **BY SRI.KRB.KAIMAL,SENIOR ADVOCATE ADV.SRI.K.PAUL KURIAKOSE** ## **RESPONDENT(S):** - **----------------------------** **1. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM.** **2. THE REGIONAL OFFICER, KERALA PUBLIC SERVICE COMMISSION, REGIONAL OFFICE CORPORATION BUILDING, ANDAMUKKAM, KOLLAM-691 001.** **3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **4. THE KERALA STATE FINANCIAL ENTERPRISES LTD., CORPORATE OFFICE, "BHADRATHA", THRISSUR-680 020, REP. BY ITS, MANAGING DIRECTOR.** **3/-** **sts** **-3-** ## **WP(C)NO.36005/2009** ## ***ADDL.R5 & R6 IMPLEADED** ## ***R5: PREETHA.S., GURUPRASADIL,ALIBHAGAM,** **CHAVARA SOUTH.P.O., KOLLAM,PIN-691 584** ***R6: SAJEEV.K.S.,KULANGARA VEEDU,KOONAYIL, NEDUNGOLAM-691 334** ## **(*ADDL.R5 & R6 IS IMPLEADED VIDE ORDER DATED 14/12/2010 IN WPC)** **R1 & R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R3 BY GOVERNMENT PLEADER SRI.EGY.N. EALIAS R4 BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-06-2013, ALONG WITH WPC.NO. 36101 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.36005/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE NOTIFICATION PUBLISHED IN EXTRA ORDINARY GAZETTE DATED 28/3/2007 FOR CATEGORY NO.115/2007** - **P2 COPY OF THE ADMISSION TICKET OF THE 1ST PETITIONER WITH REGISTER NO.S 145472** - **P3 COPY OF THE RELEVANT PORTION OF THE RANK LIST** - **P4 COPY OF THE LETTER DATED 30/10/2009 RECEIVED BY THE 1ST PETITIONER.** - **P5 COPY OF THE LETTER NO.KLR.3(3)72/R.I ACT/2009 DATED 18/11/2009 PUBLIC INFORMATION OFFICER OF THE OFFICE OF THE 2ND RESPONDENT.** - **P6 COPY OF THE LETTER NO.4155/RIA DATED 2/11/2009 PUBLIC INFORMATION OFFICER OF THE OFFICE OF THE K.S.F.E.** ## **RESPONDENT'S EXHIBITS:** - **R4(A) COPY OF THE 4TH RESPONDENT'S LETTER NO.4119/A TO THE 1ST RESPONDENT DATED 13/6/2007** - **R4(B) COPY OF THE 1ST RESPONDENT'S LETTER TO THE 4TH RESPONDENT DATED 7/10/2008** - **R4(C) COPY OF THE 4TH RESPONDENT'S LETTER TO THE 1ST RESPONDENT DATED 9/12/2008** - **R4(D) COPY OF THE 4TH RESPONDENT'S LETTER TO THE 1ST RESPONDENT DATED 17/8/2009** - **R4(E) COPY FO THE 4TH RESPONDENT'S LETTER TO THE 1ST RESPONDENT DATED 19/9/2009.** - **R1(A) COPY OF THE APPOINTMENT CHART FOR ADVISES MADE ON 12/1/2011** ## **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## C.K.ABDUL REHIM,J. ------------------------------- WP(C).NOs.36005/09,36101/09, 2292,28171,30435,30922,32562,33056, 37960 &38774 of 2010 & 9563/2011 --------------------------------Dated this the 3rd day of June, 2013 ## JUDGMENT Since issue involved is common in all these cases, they were considered and disposed of together through this common judgment. The Public Service Commission (PSC) invited applications for appointment of employees in various Companies/Corporations/Boards owned by the Government, in different posts such as Assistant Grade II/Clerk, Junior Clerk/LD Clerk,Cashier/Junior Assistant etc. The petitioners in all these cases are candidates selected and advised pursuant to the said notification which was published in Extra Ordinary Gazette, dt. 28.3.2007. Challenge is with respect to the priority followed in the matter of advising selected candidates to various institutions. Grievance is that, 'Advice Memos' were issued without following any particular priority in the matter of appointment to different organisations visa-a-vis ranking of the candidates in the select list. It is contended that no option was given to the selected WP(C).36005 /2009 & conn. cases 2 candidates to choose the organisation nor PSC had advised the candidates based on their position in the Rank List. Complaint is that, by virtue of the irrational and unreasonable method followed in fixing priority in the matter of advising candidates to different organisations, those who obtained higher rank in the selection were compelled to join Companies, Corporations and Boards which are providing only less emoluments, and benefits attached to the posts and where career prospects are not at all attractive. Hence the petitioners are challenging the 'Advice Memos' issued. 2. The petitioners have no case that there exists any rules or regulations prescribing any particular priority to be followed in the matter of advising candidates from a common Rank List to various Organisations, Companies or Corporations. An identical issue came up for consideration before a Division Bench of this court in WA.No.1620/2007 (judgment dt. 6.4.2011). There the selection was to the post of Assistant Engineers/Assistant Director/Head Draftsmen under the Irrigation Department and Public Works Department (PWD). It was a common rank list WP(C).36005 /2009 & conn. cases 3 prepared by PSC. Petitioners therein claimed that, persons lower in rank to them were advised to PWD without considering their choice/option for PWD. Since no options were called for, the petitioners therein were advised and appointed only in the Irrigation Department. Those who got appointment in the PWD is likely to get accelerated promotion, is the complaint. A learned Single Judge of this court observed that the petitioners cannot blame PSC for making advice from the Rank List in accordance with receipt of the vacancy reports. After accepting the advice and after joining duty, they cannot turn around and say that they have been wrongly advised and their claim for appointment to another department should have been considered. In writ appeal filed against the said judgment a Division Bench of this court observed that, “no doubt, it is the fortuitous circumstances which determine the career of a successful candidate and there is an element of arbitrariness in the said process.” The Division Bench have referred to an earlier decision, **Sukumaran vs. State of Kerala (1987(1) KLT 445).** There it was observed that it is high time to reformulate principle and procedure to be WP(C).36005 /2009 & conn. cases 4 adopted in making advice from a common rank list. But it is noted that the observations made in **Sukumaran's case** (supra) were not approved by the Supreme Court, eventhough the Special Leave Petition was dismissed. In WA.No.1620/2007 the Division Bench also observed that in **Sukumaran's case** (supra) this court did not record any conclusive statement of law. 3. I am of the considered opinion that unless any statutory violation is pointed out in the matter of priority in advising candidates from the common rank list to different organisations, the petitioners cannot insist upon that advice should be made on the basis of ranking and option to be exercised. Hence the impugned advice cannot be challenged. 4. Another aspect pointed out is that, according to the PSC they are following priority in the matter of advice on the basis of the date of receipt of vacancy report. But it is illustrated in various writ petitions that preference is given to fill up NJD vacancies by advising candidates who secured higher rank. According to PSC, NJD vacancies have to be filled up with priority because those are vacancies pertaining to an earlier notification. WP(C).36005 /2009 & conn. cases 5 I find no fault with the PSC in filling up the NJD vacancies, before advising candidates against vacancies reported later. 5. Serious contentions are raised illustrating that, the PSC had even violated the priority based on date of receipt of vacancy reports from the Companies/Corporations/Boards concerned. Common stand taken by PSC is that, advices are issued keeping priority based on the date of receipt of vacancy reports. But it is pointed out that, the advices were issued from Regional Offices of PSC in the case of various organisations. Such organisations have reported vacancies to the Regional Offices in which appointments of such organisations were dealt with previously . But it is complained that the date of receipt of such reports in various Regional Offices were not reckoned in fixing priority. Stand taken by PSC is that, for advising candidates priority is fixed only based on the date of receipt of vacancy reports at the unit offices concerned. According to the petitioners, it is a totally unreasonable and arbitrary stand . It is pointed out that, with respect to organisations like Kerala Sate Financial Enbterprises (KSFE) the selection process was hitherto assigned WP(C).36005 /2009 & conn. cases 6 to the Regional Office, Kozhikode and the said organisation was never intimated that selection pursuant to the present notification will be from the Regional Office, Kollam. At no point of time the organisation was intimated by the PSC that they should report vacancies to the Regional Office at Kollam. The petitioners illustrated that the said organisation had reported vacancies to the office at Kozhikode, much earlier and there occurred inordinate delay in forwarding such report to the Kollam office. Similarly in the case of other organisations there occurred delay in forwarding the reports from the Head Quarters to the Regional Offices concerned, as illustrated by the petitioners. 6. Contention is that, when PSC adopts the date of receipt of report of vacancies as criteria for advising candidates, they should treat the date of receipt of the report in any of its offices as basis, and not the date of receipt of the report at the Regional Office concerned. The petitioners have even raised allegation that there was deliberate and wilful act on the part of the PSC in dealing with the matter. But it is contended on behalf of the PSC that advices can be issued only from the office which is WP(C).36005 /2009 & conn. cases 7 assigned with the selection process and such advices can be issued only on the basis of receipt of report of vacancies at those offices. It is denied that there is any malafide or intentional action on the part of PSC in dealing with such reports. Since the offices from where the advices were issued had strictly followed priority on the basis of the date of receipt of reports of vacancies at those offices, the advice issued cannot be assailed as arbitrary or unreasonable, is the contention. 7. As observed above, there is no statutory rules or regulations prescribing criteria for making advice from a common select list. Despite this court observed that it is desirable to follow the method of providing option in the matter of selecting the organisations. But the Hon'ble Supreme Court had not approved such directions. There is no scheme formulated on the said aspect till date. Since the petitioners cannot challenge the impugned advices on the basis of any violation of statutory provision, the writ petition cannot succeed. It always happens that fortuitous circumstances determine career of successful candidates, as observed by the Division Bench in WP(C).36005 /2009 & conn. cases 8 WA.No.1620/07. Eventhough an element of arbitrariness can be attributable in the said process, court cannot interfere. Therefore these writ petitions are dismissed. C.K.ABDUL REHIM, JUDGE pmn/ WP(C).36005 /2009 & conn. cases 9