Writ Appeal No. 616/2022 (The Kerala Public Service Commission & District Officer, Kozhikode v Navaneesh P.S. & The State of Kerala & Others)

W.A. No. 616/2022 ..1.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944 WA NO. 616 OF 2022** **AGAINST THE JUDGMENT IN WP(C).NO.15460/2021 OF THE HIGH** **COURT OF KERALA** ## **APPELLANTS/RESPONDENT NOS. 5 & 6:** - **1 THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY THE SECRETARY PIN – 695004.** - **2 THE DISTRICT OFFICER, THE KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KOZHIKODE, PIN – 673001.** **BY SRI.P.C.SASIDHARAN, STANDING COUNSEL** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4:** - **1 NAVANEESH P.S., AGED 40 YEARS, S/O. NARAYANAN NAIR, PURATHOLI HOUSE, KIZHAKKUMMURY P.O, KAKKODI (VIA), KOZHIKODE, PIN – 673611.** - **2 THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.** - **3 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.** W.A. No. 616/2022 ..2.. **4 THE REGISTRAR, DISTRICT JUDICIARY, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.** **5 THE CHIEF JUDICIAL MAGISTRATE, CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE, PIN – 673004.** **ADV.SRI.O.D.SIVADAS, FOR R1 ADV.SRI.B.G.HARINDRANATH, FOR R4 & R5 SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER FOR R2 & R3** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No. 616/2022 ..3.. ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN , JJ. ============================================= W.A. No. 616 of 2022 _[arising out of the impugned judgment dated 22.12.2021 in W.P.(C) No. 15460/2021]_ ============================================= Dated this the 30[th] day of May, 2022 ## J U D G M E N T ## ALEXANDER THOMAS, J. The judgment rendered by the learned Single Judge on 22.12.2021 disposing of WP(C).No.15460/2021, is the subject matter of the instant intra court appeal. The appellants in the W.A. are R-5 & R-6 in the WP(C) _(The Kerala Public Service Commission and its District Officer at Kozhikode)_ , R-1 in the W.A. is the writ petitioner, R-2 & R-3 in the W.A. are R-1 & R-2 in the WP(C) _(State authorities)_ and R-4 & R-5 in the W.A. are R-3 & R-4 in the WP(C) ( _The High Court of Kerala on the administrative side & the Chief Judicial Magistrate, Kozhikode)_ . 2. Heard Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission _("PSC" for short)_ , appearing for the appellants in the W.A., Sri.O.D.Sivadas, learned counsel appearing for R-1 in the W.A., Sri.B.Unnikrishna Kaimal, W.A. No. 616/2022 ..4.. learned Senior Government Pleader appearing for R-2 & R-3 in the W.A. and Sri.B.G.Harindranath, learned counsel appearing for R-4 & R-5 in the W.A. 3. The prayers in the instant WP(C).No.15460/2021 are as follows: - " - _i. issue a writ of mandamus or appropriate writ, order commanding the Government to the issue consequential order clarifying Ext.P3 order pursuant to Ext.P4 proceedings of the Registrar, District Judiciary, High Court of Kerala so as fill up 4 vacancies of Office Attendant from Ext.P1 rank list published by the Kerala Public Service Commission._ - _ii. issue appropriate order or direction to the Chief Judicial Magistrate Court, Kozhikode to report 4 vacancies Office Attendant to the Kerala Public Service Commission, the 6[th] respondent at the earlist, enabling the Commission to fill up the vacancies from Ext.P1 rank list;_ - _iii. declare that engagement of temporary hands in the sanctioned posts of Office Attendant in various courts in Kozhikode District is not legal and justifiable._ - _iv. issue approriate writ, order or direction to the 6[th] respondent to issue advice memo from Ext.P1 rank list to the post of last grade servants immediately on receipt of requisition from the Chief Judicial Magistrate, Kozhikode._ - _v. issue approriate order or direction to the Chief Judicial Magistrate, Kozhikode to effect appointment of advised candidates from Ext.P1 rank list immediately._ - _vi. grant the petitioner such other reliefs which this Honourable Court deems just and fit in the circumstance of the case."_ 4. The plea for interim relief in this WP(C) came up for consideration before the learned Single Judge on 3.8.2021, on which day an interim order was passed as follows: _"In view of the sanctioning of posts to the Magistrate's Courts by Ext.P3 order, there will be an interim direction to the 4[th] respondent to report 2 vacancies of Office Attendant to the 6[th] respondent, provisionally and subject to further orders from this Court. It is made clear that no advice will be made against the vacancies now reported on the strength of this order. "_ W.A. No. 616/2022 ..5.. 5. The petitioner in the WP(C) has been included as Rank No.856 in Ext.P-1 ranked list dated 30.6.2018 finalized by the PSC, for selection to the post of Last Grade Servants in various departments in Kozhikode District. It is common ground that the maximum 3 years validity period of the ranked list, in terms of Rule 13 of the Kerala Public Service Commission Rules of Procedure, was only up to 30.6.2021. The said ranked list was extended by the competent authority of the PSC till 4.8.2021. So, it is one day prior to the expiry of the ranked list on 4.8.2021, that the abovesaid interim order was granted in the WP(C) on 3.8.2021. Later, when the above WP(C) came up for disposal, it was submitted before the learned Single Judge that pursuant to certain clarificatory order issued by the Government on 9.11.2021, the High Court on the administrative side, has issued an official memorandum whereby 2 posts of Attenders (Last Grade Servants) in 27 Courts in various districts throughout the State have been sanctioned, and that the Chief Judicial Magistrates have been addressed by the High Court on the administrative side to take necessary steps, etc. Recording the above submission, the learned Single Judge has disposed the WP(C) with the direction that the W.A. No. 616/2022 ..6.. ## 5[th] respondent PSC shall issue advise orders accordingly. 6. It is now apprised to us by Sri.B.G.Harindranath, learned counsel appearing for R-4 & R-5 in the W.A. ( _The High Court of Kerala on the administrative side & the Chief Judicial Magistrate, Kozhikode)_ that the clarificatory order was issued by the Government in relation to the common sanctioned posts only on 9.11.2021 and it was only thereafter, the High Court on the administrative side has issued official memorandum dated 15.12.2021, and the 2 vacancies in the post of Attender (Last Grade Servants) in Kozhikode district was reported by the 5[th] respondent Chief Judicial Magistrate, Kozhikode to the District PSC Officer, Kozhikode only on 20.12.2021, etc. Sri.B.G.Harindranath, learned counsel would also point out that in the recent decision of the Apex Court in the case in _**Director of Indian System of Medicine & Anr. v. Dr.Susmi C.T. & Anr. [2021 SCC OnLine SC 1188]**_ as well as that rendered by the Division Bench of this Court in the case in _**Arshitha P. & Ors. v. State of Kerala & Ors. [2022 (2) KHC 299]**_ have deprecated the practise of moving for interim relief for reporting of vacancies, just on the verge of the expiry of W.A. No. 616/2022 ..7.. the ranked list finalized by the PSC authorities. 7. The learned Standing Counsel for the PSC would submit that such requisition reports of vacancies have not been received by the PSC before the expiry of the extended period of the ranked list, which was only up to 4.8.2021 and that therefore, the direction issued by the learned Single Judge to issue advise memos even as against vacancies reported after the expiry of the ranked list, would be against the law, etc. 8. A broadly analogous scenario in relation to the post of Lower Division Clerks in Ernakulam District, wherein also the extended period of the ranked list was only up to 4.8.2021, was considered by us in the matter in W.A. No. 600/2022. Therein, the writ petitioner/appellant also stated before us that the vacancies in question were actually reported by the appointing authority (Judicial Department) to the PSC only on 20.12.2021. After referring to various Full Bench decisions of this Court and other decisions, we have held that the PSC will get jurisdictional competence to advise candidates from the ranked list, only as against the vacancies reported on or before the expiry of the ranked list and not thereafter. W.A. No. 616/2022 ..8.. 9. In the instant case, Sri.O.D.Sivadas, learned counsel appearing for R-1 herein/writ petitioner would point out that, his party is not aware about the fact as to whether the 2 vacancies in question have been reported on or before the expiry of the ranked list on 4.8.2021 or thereafter. 10. We do not propose to adjudicate on the said factual issue. However, the law on the subject regarding the jurisdictional competence of the PSC under Rule 14 of the Kerala Public Service Commission Rules of Procedure to advise candidates from a ranked list is well settled. 11. The Full Bench of this Court in the case in _**Vimala Kumari v. State [1994 (2) KLT 47 (FB)]**_ has held that if no vacancy requisition report is made by the State to the PSC for advising candidates during the currency of the ranked list, then the Court, in exercise of its powers conferred under Article 226 of the Constitution of India, cannot compel the PSC to advise candidates after expiry of the said ranked list. Similarly, the position has been reiterated by a Full Bench of this Court in the case in _**Kerala Public Service Commission v. Sheejamol [2020 (5) KLT 718 (FB)]**_ wherein, after relying on various other decisions, the W.A. No. 616/2022 ..9.. Full Bench has held that if the vacancies in question have been reported after the expiry of the ranked lists, there is no question of the PSC advising any candidate from such time expired ranked lists, as against such vacancies reported after the currency of the ranked list. 12. Similar position has already been followed in cases as in _**Public Service Commission v. Govindan [2000 (1) KLT 33 (DB)], Balakrishnan v. PSC [1994 (1) KLT 490 (DB)]**_ . Further, the Full Bench in _**Sheejamol's**_ case supra _**[2020 (5) KLT 718 (FB)]**_ has held that the said position is fortified in the light of the recent judgment of the Apex Court in the case in _**Aneesh Kumar V.S. & Ors. v. State of Kerala & Ors. [(2020) 7 SCC 301]**_ wherein a civil appeal filed to challenge the Full Bench judgment of this Court in _**Unnikrishnan Nair v. State of Kerala [2019 (1) KLT 896 (FB)]**_ was dismissed. 13. Rule 14 of the Kerala Public Service Commission Rules of Procedure reads as follows: > _"14. The Commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive in the order of priority, if any, and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable."_ W.A. No. 616/2022 ..10.. 14. Hence, the position is well settled that the PSC will get jurisdictional competence to advise candidates included in the ranked list, only if the vacancy requisition report has been received by the PSC on or before, the expiry of the ranked list or the extended period of the ranked list, as the case may be. Here, the appointing authority would point out that 2 vacancies in question of the judicial department could be reported only on 20.12.2021, which is even after the extended period of the ranked list which was only up to 4.8.2021. Since, the writ petitioner is not aware of the said factum, we need not adjudicate the said issue as to whether the vacancy requisition report has been received before the expiry of the ranked list or thereafter. All we would order is that the direction contained by the learned Single Judge, directing the PSC to issue advise memo, can only be understood as a direction to the PSC, to advise candidates included in Ext.P-1 ranked list only as against vacancies which are reported on or before the expiry of the ranked list or the extended period of the ranked list, as the case may be. W.A. No. 616/2022 ..11.. 15. The impugned direction of the learned Single Judge in the above WP(C) will stand clarified and modified as above. With these observations and directions, the above Writ Appeal will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- SHOBA ANNAMMA EAPEN, JUDGE MMG W.A. No. 616/2022 ..12.. ## **APPENDIX OF WA.NO.616/2022** **PETITIONERS' EXHIBITS:** **EXHIBIT P1 COPY OF RELEVANT PORTION OF THE RANK LIST PUBLISHED BY KPSC DATED VIDE CATEGORY NO. 171/2017 PUBLISHED ON 30.06.2018 FOR KOZHIKODE DISTRICT** **EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS FORWARDED BY THE REGISTRAR, SUBORDINATE JUDICIARY, HIGH COURT OF KERALA TO THE GOVERNMENT DATED 13.09.2018** **EXHIBIT P3 TRUE COPY OF THE GO(MS) NO. 108/2021/HOME DATED 11.06.2021 ISSUED BY THE GOVERNMENT EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS FORWARDED BY THE REGISTRAR, DISTRICT JUDICIARY, HIGH COURT OF KERALA TO THE GOVERNMENT DATED 07.07.2021** **EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 30.07.2021 OF THIS HONOURABLE COURT IN WPC NO. 14134/2021**