State Of Kerala vs Aveen K.R., S/o.Radhakrishnan

Alexander Thomas, J

The prayer in the aforecaptioned Original Petition OP(KAT) No. 184/2021 filed under Articles 226 & 227 of the Constitution of India are as

follows {see page 23 of the paper book of OP(KAT) No. 184/2021} :

…......to set aside Exhibit P2 order dated 26.02.2021 in OA(EKM) No.388/2021 and Exhibit P4 Order dated 23.07.2021 in MA(EKM)

No.523/2021 in OA(EKM)No.388/2021 on the file of the Hon'ble Kerala Administrative Tribunal, Thiruvananthapuram, Additional Bench, Ernakulam by

allowing this Original Petition.

The prayers in O.A. (EKM)No.388/2021 filed by the original applicants before the Kerala Administrative Tribunal, Ernakulam Bench, are as

follows {see page 40 of the paper book of OP(KAT) No. 184/2021} :

(i) To call for the records leading to Annexure A8 and quash the same to the extent it shifts only 80 posts of Police Constable Trainee to India Reserve Battalion

(Regular Wing).

(ii) To direct the 1st respondent to shift 116 more posts of Police Constable Trainee to India Reserve Battalion (Regular Wing) forthwith.

(iii) To direct the 2nd respondent to report 199 vacancies of Police Constables in India Reserve Battalion (Regular Wing) under Cat. No.18/2016 to the 4th

respondent forthwith.

(iv) To direct the 4th respondent to issue advices against the 199 vacancies of Police Constables in India Reserve Battalion (Regular Wing) under

Cat.No.18/2016 from Annexure A2 ranked list.

(v) To direct respondents 2 and 3 to issue orders of appointment to the applicants on being advised by the 4th respondent.

(v)(a) To call for the records leading to Annexure A12 and quash the same.

(v)(b) To declare that Annexure A2 ranked list will expire only on 04.08.2021 in the light of notification dated 05.02.2021 issued by the 4th respondent.

(vi) To issue such other orders or directions as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.â€​

The prayer in the aforecaptioned Original Petition OP(KAT) No. 185/2021 filed under Articles 226 & 227 of the Constitution of

India are as follows {see page 23 of the paper book of OP(KAT) No. 185/2021} :

“.........to set aside Exhibit P2 order dated 23.02.2021 in OA No.1913/2020 and Exhibit P4 Order dated 23.07.2021 in MA No.780/2021 in

OA No.1913/2020 on the file of the Hon'ble Kerala Administrative Tribunal, Thiruvananthapuram, Additional Bench, Ernakulam by allowing this Original

Petition.â€​

The prayers in O.A.No.1913/2020 filed by the original applicants before the Kerala Administrative Tribunal, Thiruvananthapuram Bench, are as

follows {see pages 39 & 40 of the paper book of OP(KAT) No. 185/2021} :

(i) To call for the records leading to Annexure A8 and quash the same to the extent it shifts only 80 posts of Police Constable Trainee to India Reserve Battalion

(Regular Wing).

(ii) To direct the 1st respondent to shift 116 more posts of Police Constable Trainee to India Reserve Battalion (Regular Wing) forthwith.

(iii) To direct the 2nd respondent to report 135 vacancies of Police Constables in India Reserve Battalion (Regular Wing) under Cat. No.18/2016 to the 4th

respondent forthwith.

(iv) To direct the 4th respondent to issue advices against the 135 vacancies of Police Constables in India Reserve Battalion (Regular Wing) under Cat.

No.18/2016 from Annexure-A2 ranked list.

(v) To direct respondents 2 and 3 to issue orders of appointment to the applicants on being adviced by the 4th respondent.

(v)(a) To call for the records leading to Annexure-A11 and quash the same.

(v)(b) To declare that Annexure-A2 ranked list will expire only on 04.08.2021 in the light of notification dated 05.02.2021 issued by the 4th respondent.

(vi) To issue such other orders or directions as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.â€​

Heard Sri.Antony Mukkath, learned Senior Government Pleader appearing for the petitioners in the O.P.s/ respondents 1 to 3 in the O.As before

the Tribunal, Sri.P.Nandakumar, learned counsel appearing for contesting respondents in the O.Ps/original applicants in the O.As before the Tribunal

and Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission, appearing for R-3 in the O.Ps/R-4 in the O.As before

the Tribunal.

The case relates to selection and appointment to the post of Police Constables in the India Reserve Battalion (Regular Wing) in terms of selection

notification dated 10.3.2016 issued by the Kerala Public Service Commission (PSC) p[roduced as Anx.A1 in the O.A. which has led to OP(KAT)

No.184/2021]. The PSC has finalized the ranked list with effect from 4.7.2018 [produced as Anx.A2 in the O.A. which has led to OP(KAT)

No.184/2021]. According to the PSC, the ranked list has expired on 4.9.2020 as per Ext.P-3 notification dated 13.11.2020 [produced as Anx.R-2(a)

in the O.A. which has led to OP(KAT) No.184/2021]. This stand of the PSC appears to be on the premise that, as per the unamended rule, a

ranked list for a post like Police Constable, which involves training, would be valid for a period of one year or for a further period of 30 days from the

expiry of the commencement of the training of the last batch selected within the period of one year from the date of publication of the ranked list,

whichever is later. That, in the instant case, the one year of the ranked list was up to 3.7.2019, and the training of last batch selected and advised

within the said one year period had commenced on 5.8.2020, and that 30 days therefrom has expired on the midnight of 4.9.2020, and hence the

ranked list has expired from the midnight of 4.9.2020, as notified in Ext.P-3.

Whereas, the contention of the original applicants is to the effect that the said period of 30 days from the date of commencement of training of last

batch selected and advised within a period of one year is to be reckoned from 1.2.2021, and hence, the ranked list was in force till 1.3.2021. Further

that, the PSC has taken a general decision to extend validity periods of all ranked lists, which are to expire for the period between 5.2.2021 and

3.8.2021, up to 4.8.2021. Hence, it is argued by the original applicants that the validity of the ranked list stands extended up to 4.8.2021.

The Tribunal, as per interim order dated 3.2.2021 had directed the appointing authority in the Police department to report 135 vacancies

provisionally to the PSC. Later, the Tribunal had also issued the impugned interim order dated 26.2.2021 directing that 64 vacancies should also be

reported provisionally to the PSC. Further, the Tribunal has passed impugned interim order dated 23.7.2021 that the abovesaid 135 vacancies

[covered by the interim order dated 23.2.2021 passed in O.A. No. 1913/2021], as well as the 64 vacancies [covered by the interim order

dated 26.2.2021 passed in O.A.(Ekm)No. 388/2021], should be reported provisionally to the PSC on or before 30.7.2021, and that steps for

reporting compliance of the abovesaid interim directions should also be taken by the Police department.

Later, it appears that the Tribunal has also passed an interim order dated 30.7.2021 directing that the State Police Chief should comply with the

abovesaid interim direction to report 199 vacancies [135 + 64 = 199] on or before 2.8.2021 and report compliance, failing which the State Police Chief

shall personally appear before the Tribunal on 3.8.2021.

It is specific case of the petitioners (the State and the departmental authorities) that all vacancies available for recruitment for Police Constables in

the India Reserve Battalion, going by the authorized cadre strength and the vacancies available, have been duly reported. Further that, 196 vacancies

are to arise only on account of a lock in period as per the Government norms, and the said 196 lock in period vacancies will arise only in August, 2022

or so, and this is subject to the condition that a positive decision is to be taken by the Government to report such vacancies.

As of now, it appears that the stand of the Police department is that 80 vacancies, out of the 196 lock in period vacancies have already been

reported by the Police department to the PSC without any interim orders. Hence, the balance of the lock in period vacancies will be 116 vacancies

[196 - 80 = 116]. It appears that the abovesaid 116 lock in period vacancies are forming part of the 135 vacancies [covered by the interim order

dated 23.2.2021 passed in O.A. No. 1913/2021] and the balance 19 vacancies [135 â€" 116 = 19] are promotion vacancies alleged by original

applicants. Further, the 64 vacancies [covered by the interim order dated 26.2.2021 passed in O.A. (Ekm)No. 388/2021] comprise of 36 NJD

vacancies and 28 relieving vacancies [36 + 28 = 64] as alleged by the original applicants.

Hence, out of the 199 vacancies [135 + 64 = 199] claimed by the original applicants, which is the subject matter of the interim orders of the

Tribunal, 116 vacancies are indisputably part of the lock in period vacancies, which are to arise only by August, 2022 or so. So, even if the case of the

original applicants is accepted that the ranked list is valid up to 4.8.2021, the said 116 vacancies are not substantive vacancies in existence on or

before the expiry of rank list, even going by the claim of the original applicants.

Further, Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission, would submit that the Rules of Procedure for

the Kerala Public Service Commission have been amended with effect from 4.4.2016, whereby the ranked list for a post involving training like Police

Constables, etc. will have a maximum life span of only one year and nothing more. Further it is also pointed out that, though the selection notification in

this case has been issued on 10.3.2016 [prior to the amendment of the Rule made effective from 4.4.2016], the matter relating to life span of a

ranked list prepared by the PSC is essentially a matter relating to procedure and therefore, it is well established that any amendment made effective

for regulating procedural norms would be affecting, not only cases which are arising on or after the amendment, but also would affect all pending

cases. Hence, it is pointed out that the ranked list prepared on 4.7.2018 in pursuance of the selection notification dated 10.3.2016, will be regulated by

the amended norm made on 4.4.2016, with the result that, at best the maximum period of ranked list could only be one year. Hence, it is pointed out by

the learned Standing Counsel for the Kerala Public Service Commission that the stand of the PSC that the ranked list in this case has been cancelled

with effect from 4.9.2020, cannot be legally disputed in any view of the matter.

Sri.P.Nandakumar, learned counsel appearing for the original applicants would point out that, that may be a matter which is to be adjudicated and

determined in the final disposal of the O.A.

After hearing both sides, we are of the view that, even if the case of the original applicants is accepted as it is, 116 vacancies, out of the 199

vacancies covered by abovesaid impugned interim orders of the Tribunal, are part of the lock in period vacancies, and would arise only by August,

2022 or thereafter, and hence cannot be treated as substantive vacancies, even if it is accepted for argument sake that the ranked list is in force till

4.8.2021. Hence, without prejudice to the contentions of both sides, it is ordered that the impugned interim orders of the Tribunal rendered on

23.2.2021, 26.2.2021 and 23.7.2021 will stand modified by ordering that the authority of the Police department who is competent to report vacancies,

shall provisionally report 83 vacancies [199 â€" 116 = 83] to the PSC in the prescribed proforma, but clearly stating therein that the said reporting of

vacancies is made only provisionally, and only for complying with the orders in these cases, and will be subject to the result of the O.As pending

before the Tribunal. Further, it is also ordered that the direction issued by the Tribunal on 30.7.2021 directing the personal appearance of the State

Police Chief before the Tribunal will also stand vacated and set aside.

Taking into account the submissions made by the learned Senior Government Pleader, it is also ordered that, apart from the said vacancy

requisition report, the competent authority of the Police department may also send a separate letter addressed to the Secretary, Kerala Public Service

Commission, stating that the said vacancy requisition report is being submitted by them under protest and that even these vacancies now provisionally

reported are not vacancies, which are substantive vacancies and which are liable for being reported and that the report is only made provisionally for

complying with the abovesaid interim orders in the pending cases and will be subject to the result of the O.As pending before the Tribunal.

Since going by the case of the original applicants, the list is to expire on 4.8.2021, the learned Government Pleader will give necessary instructions

to ensure that the competent authority of the Police department will furnish the requisite vacancy requisition report regarding the above 83 vacancies

provisionally in the prescribed proforma, and the said vacancy requisition report may be sent in online mode, so that the same reaches the office of the

PSC by 4 P.M. on 3.8.2021. Further, it is also noted that the petitioners have undertaken that the competent authority will report the abovesaid 83

vacancies provisionally and subject to the pending OAs so that the vacancies requisition report reaches the office of the PSC by 4 p.m. on 3.8.2021 in

the online mode. Further it is pointed out that the said undertaking is without prejudice to all the contentions to be raised by the petitioners before the

Tribunal in the pending OAs.

Further, it is ordered that the PSC need not make any advice as against the above 83 vacancies and the provisional reporting of these 83 vacancies

will be subject to the result of the O.As pending before the Kerala Administrative Tribunal.

It is also ordered that the Tribunal should also advert to the specific contention of the PSC regarding the applicability of the amended procedural

norms to the instant ranked list, and also their contention that the ranked list has already expired on 4.9.2020. The learned Senior Govt. Pleader has

also pointed out that even the 80 lock in period vacancies already reported by the Police Department to the PSC are to arise only by August, 2022 or

thereafter. Hence it is urged by the petitioners that even if the contentions of the applicants that the ranked list is valid up to 4.8.2021 and that the

preset 83 vacancies now to be reported provisionally are substantive vacancies as alleged by them, which has arisen before 4.8.2021 are tenable, even

then the abovesaid 80 lock in period vacancies already reported will have to be deducted from the 83 vacancies now to be reported, etc. This Court

need not resolve those issues now and it is for the petitioners to raise those contentions and any other contentions available to them in law before the

Tribunal at the time of the final resolution of the main issues in the pending OAs.

The impugned orders of the Tribunal will stand modified as above.

With these observations and directions, the above Original Petitions will stand disposed.