Balakrishnan, E. vs Kerala Public Service Commission and Others

K.G. Balakrishnan, J.—These Original Petitions were referred to the Division Bench as they raise important questions of law. The main relief prayed for in these writ petitions is for a writ of mandamus or any other writ or order directing the Government to extend the validity period of the P.S.C. rank list of L.D. Clerks for appointment in the various ''departments and to take necessary steps to report the vacancies to the Public Service Commission so that the Petitioners may be given advice memo by the P.S.C. Other incidental reliefs have also been prayed for in these petitions.

His Lordship stated the facts of the writ petitions and continued:

All these writ petitions were heard together. The Counsel for the Petitioners submitted that even after the expiry of the ranked list, the appointing authority can report the vacancies to the Public Service Commission and the latter is bound to issue advice memos to the candidates. It is also alleged that when there are vacancies in various departments, failure to report the vacancies to the P.S.C. is illegal and unjust and it is against the spirit and mandate of Article 320 of the Constitution. It is argued that in view of the failure of the authorities to report the vacancies to the P.S.C., this Court, in exercise of its extraordinary powers, shall issue orders to the authorities directing them to report the vacancies to the P.S.C. despite the expiry of the ranked list published by the P.S.C. According to the Petitioners'' Counsel, numerous vacancies in the various, departments are being filled up by provisional hands or by ad hoc appointments and in some cases, it is alleged that, vacancies are filled by inter district transfers to defeat the rights of the persons who are included in the ranked list published by the P.S.C. These allegations are denied by the learned Government Pleader, who appeared for the Respondents. On behalf of the Public Service Commission it was submitted that advice memo could be issued only in respect of cases where the vacancies are reported prior to the expiry of the ranked list.

The first question that may arise for consideration is whether the appointing authority is competent to report vacancies even after the expiry of the ranked list. The Kerala Public Service Commission has formulated certain rules of procedure with regard to exercise of their powers under Article 320 of the Constitution. Though these rules are not statutory rules they are governing the matters in respect of preparation of rank list and the issuance of advice memos and other relevant matters. Rule 14 is the relevant rule by which the Public Service Commission makes advice of candidates for appointment. Rule 14 of the P.S.C. Rules of Procedure reads as follows:

The Commission shall advice 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.

The above rule says that the commission shall advice candidates for all vacancies reported and pending before them and that they also consider the vacancies which may be reported to them for the period during which the ranked lists are kept alive. Counsel for the Petitioners contended that the vacancies could be reported at any time, that is, even after the expiry of the list provided the vacancies arose prior to the expiry of the ranked list. We are unable to subscribe to this view. The vacancies should have arisen prior to the expiry of the ranked list and the reporting of such vacancies should also take place before the expiry of the ranked list. If any other interpretation is given to Rule 14 of the P.S.C. Rules of Procedure, it would lead to so many anomalous situation. The question as to when the vacancies arose cannot be ascertained especially if the appointment relates to large number'' of vacancies, such as L.D. Clerks or Last Grade employees. Moreover, if the appointing authority is allowed indefinite period for reporting the vacancies, there is no meaning in prescribing the time limit for the ranked list.

It may be noticed that under Rule 13 of the P.S.C. Rules of Procedure, the ranked list published by the Commission shall remain in force for a period of one year from the date on which it was brought into force provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years whichever is earlier. So, we are of the view that the vacancies shall be reported by the appointing authority before the expiry of the ranked list and if any vacancies are reported subsequent to that date the Public Service Commission is not competent to issue advice memo under Rule 14.

Counsel for the Petitioners placed reliance on some of the decisions of this Court to canvass the proposition that the appointing authority can report vacancies even after the date of expiry of the ranked list. It was further contended that this Court had directed the authorities to report the vacancies and to effect appointment even after the expiry of the list. Reference was made to a decision of this Court reported in Rajamma v. State of Kerala ILR 1932 Ker 271. That is a case where the Appellant, a widow, was selected by the P.S.C. for appointment as Last Grade Servant. One of the essential qualifications was ability to do cycling. Appellant lacked this qualification and on that ground she was excluded from appointment. This Court held that exclusion of the Appellant was unfair and the denial of appointment to women to posts in the Last Grade Service on the sole ground that they are women is opposed to Articles 14 and 15(1) of the Constitution of India and this Court directed the authorities to appoint the Appellant as Last Grade Servant and the P.S.C. was directed to advise the Appellant for appointment. The above decision has no application to the facts in these cases. It is true that if the denial of appointment is on some illegal and unjust ground, this Court can pass effective orders and mould reliefs accordingly and the expiry of the ranked list shall never be a fetter to the powers of this Court.

As regards the scope and amplitude of Rule 13 of the P.S.C. Rules of Procedure there is an earlier decision of this Court reported in Annie v. Commissioner, Chalakudy Minicipality 1984 KLT 170. That is a case where the Petitioners were working in Trichur Municipality as provisional employees. They filed original petition and obtained orders from this Court to the effect that their services shall not be terminated except in accordance with Chapter VA of the Industrial Disputes Act but subject to being replaced by regular recruits on the advice of the P.S.C. While so, on requisition from the concerned authority, the P.S.C. conducted selection and prepared a ranked list, which came into force on 1st June 1981. The ranked list had a validity for 2 years and it lapsed on 31st May 1983. After the expiry of the ranked list, the persons included in the ranked list were advised to be appointed. This was challenged by the Petitioners alleging that the Service Commission could not advice any pet son from the list after 31st May 1983 and no person was illegally advised by the Service Commission could be validly appointed. While considering the legality, of such appointment, U.L. Bhat, J. observed as follows:

Rule 13 of course fixes the period during which a ranked list is to, have life. Read by itself, it may mean that an appointment from a ranked list which has lapsed is not possible; but, Rule 13 cannot be read in total isolation. If there are any other rules having a bearing on this question, those rules also have to be read; as far as possible, the Court must endeavour a harmonious construction of the different rules. Rule 14 requires the Service Commission to advise candidates for all vacancies reported and pending before them and vacancies which were reported to them for the period during which the ranked lists are kept alive. This would indicate that whenever a vacancy is reported to the Commission before the ranked list lapses, the Commission has a duty to advise candidate to such vacancy It is open to the department concerned to report vacancies even on the very day on which the ranked list lapses. This is clearly within a contemplation of Rule 14. If that be so, it is impossible, to expect the Service Commission to advise candidates on the very same day on which the vacancy is reported to them. This is because the preparation of advice list consists not merely in copying names from the ranked list, but re-arranging the names in accordance with the directions, priorities, etc. in the special rules and in the rules regarding the reservations. Realistic understanding of Rule 14 would clearly lead to the inference that the Service Commission is entitled to and lias also a duty to advise candidates even after the lapse of the ranked list, provided the vacancies concerned are reported to Service Commission during the period when the ranked list has life. Rule 13 must be read subject to Rule 14. In other words, excepting in contingencies as contemplated in Rule 14, a ranked list published by the Service Commission shall have life only during the period contemplated in Rule 13; or in other words, notwithstanding the lapse of the period of the ranked list as per Rule 13, the ranked list could be utilised for the limited purpose of advising candidates in relation to vacancies reported to the Service Commission before the lapse of the ranked list.

There is an earlier decision of Khalid, J. as he then was reported in Murugan v. State of Kerala ILR 1982 Ker 74. That is a case where the ranked list expired on 27th March 1980. On the last date the Government requested the Service Commission to advise 6 candidates from the select list. This letter reached the Commission on the same date and the Commission later advised two candidates included in the list for appointment. Rejecting the contention of the Petitioners that appointment was illegal, it was observed:

By this rule the Commission is mandated to advise candidates for all the vacancies reported, both pending before them and reported during the subsistence of the ranked list.

A Full Bench of this Court considered these aspects while disposing R.P. No. 8/93 in W.A. No. 967 of 1987 ILR 1994 Ker 213 (F.B.). There the Petitioners contended that at the time when the ranked list for appointment of Agricultural Income Tax and Sales Tax Officers expired on 30th October 1987 there were 16 vacancies and they should have been reported by the Government to the P.S.C. The Full Bench expressed the view that, as the list had expired, it was not proper to direct the Commission to advise Petitioners or direct the Government to appoint the Petitioners. It was observed in paragraph 13 of the Order that Rule 13 of the P.S.C. Rules of Procedure is clear to the effect that the validity of the list is only for 3 years and the vacancy could not be reported thereafter. Therefore, it is clear that, under Rule 14, vacancies should be notified before the expiry, of the list. The argument of the Petitioners Counsel to the contrary cannot be accepted.

The next aspect that is to be considered is whether the Petitioners are entitled to get appointment even after the expiry of the list and that there shall be a direction from this Court to the appointing authorities to direct them to notify the vacancies despite the expiry of the list. Counsel for the Petitioners contended that the appointing authorities'' have resorted to interdistrict transfers and ad hoc appointments to defeat the interests of the Petitioners and, therefore, the Petitioners are entitled to get appointment. No material is placed before us to substantiate this contention. Even if some vacancies were filled up by interdistrict transfers, vacancies will arise in the district from where transfer'' was effected. Learned Government Pleader submitted that in the districts of Ernakulam, Alappuzha, Kannur and Kasaragod no posts were filled up by interdistrict transfers. In other districts some vacancies were filled up and the resultant vacancies were notified to the Public Service Commission. There is also no evidence to indicate that the vacancies alleged to have been in existence are filled up by ad hoc appointments or by appointing provisional hands.

Petitioners'' Counsel alleged that there was a ban of appointment for some time and, therefore, the vacancies were not reported during this period and this, in a way, affected the prospects of the Petitioners in getting employment. It is true that there was a ban of appointment and it was lifted subsequently. The validity of the ranked list also was extended for a month immediately after the cessation of the ban. Vacancies, then existed, might have been reported during this period. So the Petitioners'' chance to get appointment was not in any way affected by the ban of appointment.

The above facts will show that there was no illegality on the part of the appointing authority and the appointments were done on the basis of the seniority of the candidates in the ranked list. Counsel for the Petitioners contended that failure to appoint rest of the candidates, whose names are included in the ranked list, is illegal and the Government has no authority to pick and choose candidates.

Reference was made to the decision reported in Mrs. Asha Kaul v. State of Jammu and Kashmir J.T. 1993 S.C. 688. That is a case where the Public Service Commission prepared a list of 20 candidates for appointment as Munsiffs. The Government approved the list in part and disapproved the balance. The Supreme Court held that the Government has no, absolute powers to disapprove or reject the recommendations of the Commission. Based on this observation, the Counsel for the Petitioners contended that the failure of the authority to report vacancies amounts to disapproval of part of the list and, therefore, this Court should direct the Respondents to report all the vacancies. We do not think that from the decision cited above such a consequence will follow. Here, the appointing authority has not disapproved the list. In all the districts majority of the persons included in the ranked list were given appointment. The candidates were not picked and chosen for appointment. The appointment was done strictly on the basis of the seniority in the ranked list. So, the observations made by the Supreme Court in Mrs. Asha Kaul and Anr. v. State of Jammu and Kashmir has no application.

Reference was also made to the decision reported in Padmanabhan v. State of Kerala ILR 1982 Ker 346. That is a case where the ranked list for appointment to the post of Junior Engineer had lapsed and the Petitioner therein sought appointment alleging, that he is entitled to get appointment on the basis of the ratio maintained in the Kerala Engineering Subordinate Service (Radio Branch) Rules, 1967. The learned single Judge observed that the Court has not only the right but also the duty to ensure that the appointing authority does not circumvent its statutory obligation under Rule 31(a)(ii) of the Kerala State and Subordinate Service Rules by delaying and defeating the rights of the selected candidates to get appointed to the posts which fell to their lot. The Court further directed to give appointment to the Petitioner. The views expressed by the Learned Single Judge was disapproved by the Full Bench of this Court in R.P. No. 8/93 in W.A. 967 of 1987 ILR 1994 Ker 213 (F.B.).

In A. Sreekantan Nair v. M.K. Muraleedhdran Nair 1991 Lab I.C. 2163 a Division Bench of this Court considered the question whether the advice for appointment made by the Public Service Commission pending for an unduly long period of time could elapse. Speaking for the Bench, Viswanatha Iyer, J. held:

Equal opportunity for public employment is one of the fundamental freedoms guaranteed by the Constitution. Public employment opportunity is national wealth or property of the nation which all citizens are equally entitled to share subject of course to the possession of qualifications necessary for holding the post. No class of people can monopolise public employment for any reason. Right to employment is no private property, but one to be shared equally by all those who are eligible for it. In this country of perennial unemployment particularly, the guarantee of equal opportunity in public employment assumes great importance. Such opportunity must be available to succeeding generations of young men who become eligible for appointment from time to time by Otherwise the guarantees under Articles 14 and 16 will become illusory. Creation of such reservoirs from which appointments are to be made for years to come leads to arbitrariness for the reason that any advice beyond the necessities of a particular period will result in stagnation of th6 list for a long number of years with resultant denial of opportunities for the subsequent eligible candidates.

The Petitioners have not made out a case to issue a writ of mandamus directing the appointing authorities to the vacancies even after the expiry of the list. Merely because, the Petitioners names are included in the rank list, it does not give any right to them to claim appointment. Petitioners have no case that they were denied employment by reason of any arbitrary exercise of power or illegality committed on the part of the appointing authority. Therefore, the request of the Petitioners that the appointing authority may be directed to notify the existing vacancies to the Public Service Commission and direct the latter to issue advice memos to these Petitioners cannot be accepted.

In O.P. No. 153 of 1994 the facts are slightly different. Here, the Petitioner was included in the ranked list as No. 11 for appointment as Panchayat Executive Officer Gr. II. The ranked list expired on 4th May 1992. On the last day one C. Sivadasan, who was rank No. 9 in the list, informed the Public Service Commission that his name may be removed from the ranked list. His application is purported to have been filed under Rule 18(ii) of the P.S.C. Rules of Procedure. But the P.S.C. declined to accept this and issued advice memo to C. Sivadasan. Petitioner contends that the procedure adopted by the P.S.C. was illegal and that the P.S.C. should have accepted the request of Sivadasan and in his place the name of the Petitioner should have been advised. This contention is not correct for various reasons.

Original Rule 18(ii) of P.S.C. Rules of Procedure was amended with effect from 1st December 1983. As per the earlier Rule any candidate whose name has been included in a ranked list prepared by the Commission may at any time before the receipt of order of appointment relinquish his claim for appointment in writing. As per the amended rule such relinquishment is possible on or before the date of receipt of requisition for advice against the post which he is to be advised. In the instant case, C. Sivadasan relinquished his claim after the Public Service Commission received requisition from the appointing authority for his advice for appointment as Panchayat Executive Officer Gr. II. On the basis of the amended rule P.S.C. could not have entertained his request on the last date of the expiry of ranked list. The P.S.C. rightly rejected his relinquishment. The contention of the Petitioner that the requisition for his appointment was received by the P.S.C. on the last date i.e. 4th May 1992 itself and, therefore, he should have been appointed is not correct. The requisition was sent by the Distinct Panchayat Officer and he was not the competent authority to make such requisition as he was not the appointing authority. There was no requisition from the Director of Panchayats, who is the competent authority to report vacancies to the Public Service Commission. Counsel for the Petitioner pointed out that there was subsequent ratification by the Director of Panchayats which, we find, is of no consequence. For the above reasons, Petitioner in O.P. No. 153 of 1994 is not entitled to a writ of mandamus prayed for in the Original Petition.

Except the Petitioner in the case of O.P. No. 13722 of 1993, all other Petitioners have not been served with advice memo for appointment. The ranked list for appointment of L.D. Clerks and Last Grade Employees expired and the Petitioners are not entitled to a writ of mandamus prayed for directing the Respondents to report all the pending vacancies in respect of L.D. Clerks and Last Grade Servants. In the case of O.P. No. 13722 of 1993, the Respondents may appoint the Petitioner as L.D. Clerk as and when her turn comes.

O.P. No. 13722 of 1993 is disposed as stated above. All other Original Petitions are dismissed.