Kerala Public Service Commission vs Govindan, P.T.K. and Others

Order of learned Single Judge directing fifth Respondent in the present writ appeal (fourth Respondent in the O.P.) to advise four candidates from the rank list against the reported vacancies of Peons, which is to be complied with within one month from the date of receipt of a copy of the Judgment, is under challenge. Relief sought in the Original Petition was to direct Respondents 2 to 5 to report the existing vacancies to the Appellant in the respective local bodies and to make appointments from the rank list prepared for the post of Peon in the Municipal Common Service in Kozhikode District.

Direction was given in the following background: First Respondent was included in the rank list of Peons to be appointed in various Municipalities and the Corporation of Kozhikode district. As per the interim order dated 4th February 1998, this Court directed the second Respondent to report four vacancies of Peons on or before 9th February 1998 to the Appellant. In the counter-affidavit filed on behalf of the Appellant, it was stated that two vacancies were reported on 3rd February 1998 and that the second Respondent was unaware of the existence of the interim order passed by this Court, by which four vacancies of Peons were to be reported. By the time he came to know of it, currency of the list had expired. Therefore, he reported the remaining two vacancies of Peons, as per letter dated 19th February 1998.

Learned Single Judge observed that on different occasions he had come across this kind of lethargic and indifferent attitude on the part of officers who were in charge of reporting the vacancies diligently to the Commission. It was also observed that the Office of the Advocate General conveyed the message to the second Respondent about the order passed by this Court. Law Officer in his statement before this Court stated that the number of vacancies was not specified in the message. Learned Single Judge was of the view that he could have contacted the Office of the Advocate General to know about the exact number of vacancies to be reported. It was, therefore, held that the two vacancies reported by letter dated 19th February 1998 must be deemed to have been reported on or before 9th February 1998.

According to the Appellant, direction given is clearly contrary to law. The vacancy has to be notified before expiry of validity period of the list. By a subsequent order, a rank list which has lost its effect cannot be re-validated. Learned Counsel for the first Respondent submitted that because of the lethargic action of the authorities, candidates, whose names appeared in the rank list, have not been given appointment.

It is well-settled law that inclusion of name in the list of successful candidates does not confer an indefeasible right to be appointed. In Shankarsan Dash Vs. Union of India, , it was observed as follows:

It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies.

This position was reiterated in Rani Laxmibai Kshetriya Vs. Chand Behari Kapoor and Others, wherein it was observed that after expiry of the period for which the panel remains alive, it is not open to a court to issue direction to appoint people from the said panel.

In State of U. P. and others Vs. Harish Chandra and others, , it was observed that after the expiry of the panel, no direction can be given for its extension. Under the Constitution, a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. In State of U. P. and others Vs. Harish Chandra and others, , it was observed that the direction in the said case was given by the High Court when the list did not survive. It was clarified that it is not the rule that High Court must issue such direction if the writ petition was filed before the expiry of the period, and the same was disposed of after the expiry of the statutory period. In Government of Orissa through Secretary, Commerce and Transport Department, Bhubaneswar Vs. Haraprasad Das and Others, , it was observed that it is not for the court or the tribunal to direct the Government to make further appointments from the said list by treating it as in force.

In view of the aforesaid position of law, it has to be decided whether the direction given by this Court to include two names after the expiry of the term of the list, deeming it to have been done before the expiry of the period is correct. The direction came in view of the interim direction earlier passed by this Court.

The term ''deemed'' is mostly used to extend the denotation of the defined term to things it would not in ordinary parlance denote and is often a convenient device for reducing the verbiage of an enactment, but that does not mean that wherever it is used, it has that effect; to deem means, simply to judge or reach a conclusion about something, and the words ''deem'' and ''deemed'' when used in a statute thus simply state the effect or meaning which some matter or thing has the way in which it is to be adjudged. This need not import artificiality or fiction; it may simply be the statement of an undisputable conclusion. When a thing is to be ''deemed'' something else, it is to be treated as that something else with the attendant consequences, but it is not that something else. In an oft-quoted passage, Lord Asquith stated: If you are bidden to treat an imaginary state of affairs as real you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably flowed from or accompanied it. The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs, [see East End Dwelling Co. Ltd. v. Finsbury Borough Council 1951 (2) All E.R. 587 (H.L.)]. The passage has been referred to and quoted in many decisions of the apex court. It has been held that the position has been eloquently stated [see S. Appukuttan Vs. Thundiyil Janaki Amma and Another, , Maganlal Vs. Jaiswal Industries, Neemach and Others, and M/s. Orient Paper and Industries Ltd. and another Vs. State of Orissa and others, But, as observed by the apex court in State of Travancore-cochin and Others Vs. Shanmugha Vilas Cashew Nut Factory and Others, and The Bengal Immunity Company Limited Vs. The State of Bihar and Others, and Maganlal Vs. Jaiswal Industries, Neemach and Others, legal fictions are created only for some definite purpose, and is to be limited to the purpose for which it was created, and should not be extended beyond that legitimate field. In the background of aforesaid principles, it is to be seen how far the direction given is legal. By the time the order was passed, the rank list had no validity. Merely because an order has been passed, which is not complied with that cannot be a ground to validate the list after its expiry. In the background of what has been stated by the apex Court in the cases referred to above, Court could not have given a direction, as done. That being the position, the direction given by the learned Single Judge is unsustainable.