Sumina Rani A. vs Kerala Public Service Commission

A.M. Shaffique, J.—These appeals are filed by the unsuccessful writ petitioners against the common judgment dated 04/07/2011 in W.P.(C) Nos. 1800/2010 and 34344/2010.

The petitioner in W.P.(C) No. 1800/2010 has sought for a direction to the Kerala Public Service Commission (for short ''KPSC'') to expand the ranked list published by them, including sufficient number of candidates taking into consideration 116 vacancies to the post of Higher Secondary School Teacher Junior (Hindi) [for short ''HSST Jr. (Hindi)]. In the other writ petition, the petitioner challenged the method by which Non Joining Duty (for short ''NJD'') vacancies were compensated by the KPSC.

The facts involved in these cases would show that KPSC published ranked list on 17/11/2008 pursuant to a notification published in the year 2005. Petitioners contended that the actual vacancies were 116 which were reduced to 73 in terms of Ext. P3 communication by the Director of Higher Secondary Education. There were only 95 candidates in the main list and KPSC ought to have included 117 candidates in the main list instead of 95. The ranked list was in operation for a period of three years. It is contended that the main list got exhausted on reporting of 109 candidates.

Petitioner in W.P.C. No. 1800/2010 contends that Ext. P1, the ranked list, will get exhausted on reporting of the 109th candidate which will affect her opportunity to get an employment. This situation has occurred due to the non joining of duty by five candidates and on account of the fact that KPSC has not included enough candidates in the main list. Petitioner also finds illegality on the part of the 2nd respondent in not reporting the vacancies after filling the vacancies of upgraded post as described in Ext. P3.

In W.P.(C) No. 34344/2010, the main contention urged by the petitioner is that the ranked list got exhausted on advising of 96 candidates. There were six candidates who were declared as NJD. The ranked list was not prepared taking into consideration the fact of NJD compensation from the same list. It is contended that, if one out of the 6 NJD candidates had joined duty, petitioner would have been advised as the 98th candidate. It is also contended that sufficient candidates were not included in the ranked list which has resulted in such disparity and which has affected the opportunity of the petitioner.

It was inter alia contended by KPSC that applications were invited on 14/11/2005 and the ranked list was brought into force on 17/11/2008. 95 candidates were included in the main list and 191 candidates in the supplementary lists. Prior to the finalisation of the shortlist, 39 vacancies had been reported to KPSC consisting of 22 fresh vacancies and 17 NJD vacancies. Therefore shortlist was prepared by including 286 candidates, of which 95 candidates were in the main list and 191 candidates in the supplementary lists. The candidates included in the shortlist alone were interviewed and therefore, at the time of preparation of the ranked list, the number of candidates cannot be increased merely for the reason that the vacancies increased at the time of preparation of the ranked list. The remaining vacancies were reported after publication of the shortlist and the total number of candidates included in the ranked list were sufficient to meet the then existing vacancies and those likely to arise during the currency of the list.

It is further contended that the Director of Higher Secondary Education Department, by his letter dated 22/04/2009, informed that the 116 vacancies already reported were reduced to 73. Since the reason given was found to be genuine, the same was accepted by the KPSC. It is also indicated that while filling up the said 73 vacancies, the ranked list got exhausted. It is further stated that the total number of candidates advised from the list was 121 including physically handicapped candidates. The ranked list exhausted on 27/09/2010.

It is further stated that steps were taken for conducting fresh selection for the post and the notification issued indicates that on 31/12/2010, a descriptive type test was held on 04/08/2012 and steps were being taken for publication of the shortlist.

The learned Single Judge, having regard to the contentions urged by the petitioners and having relied upon the judgment of the Full Bench in Ravidas v. Public Service Commission [2009(2) KLT 295(FB)], held that all probable vacancies which may arise for a period of three years from the date of publication of the ranked list cannot be anticipated by KPSC. It depends upon various factors including number of candidates appointed from previous list, the vacancies reported thereafter and the vacancies reasonably expected to be reported. Therefore, having regard to the submission made by the learned Standing Counsel and the counter affidavit of the respondent, it was found that the petitioners are not entitled for any of the reliefs. The learned Judge also found that there is no reason to interfere with the manner in which NJD vacancies were distributed by KPSC for advising candidates. Hence the writ petitions were dismissed.

It is the contention of the learned counsel for petitioners that the KPSC has not included adequate number of candidates in the ranked list which is contrary to the law laid down by this Court in Ravidas'' case (supra). Reference is made to paragraph 42 of the judgment which reads as under:

"42. Further, the petitioners have no right to claim that all the vacancies arising over a period of 3 years should be filled up from only one ranked list. As per the rules, the validity of a ranked list (except in the case of recruitment to posts involving training) is for a period of 3 years from the date of publication or till a fresh ranked list is published, whichever is earlier. The Commission is therefore free to notify vacancies and publish a fresh ranked list without waiting for the period of 3 years to run out. Further, recruitment by the Commission to the State Civil Service is a continuous and ongoing process. Every year hundreds of thousands of students pass out of schools and colleges in the State. If the contention of the petitioners that the Commission should publish ranked lists large enough to fill up all the vacancies arising during a period of 3 years from its publication is accepted, students who pass out of schools and colleges will have to wait for years after completion of their studies to even apply for employment. The Commission decides on the number of candidates to be included in the ranked list based on the vacancies actually reported to them and where the vacancies do not exist and are not reported, based on vacancies anticipated to arise. The Apex Court has in Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. (supra) held that where there is a composite test consisting of written examination followed by a viva-voce, the number of candidates to be called for the interview in the order of marks obtained in the written examination, should not exceed twice or at the highest, thrice the number of vacancies to be filled. The shortlist and the ranked list published for appointment to the post of Veterinary Surgeon Grade-II satisfy the above criterion. Though in State of Punjab and others v. Manjit Singh & Ors. (supra) the Apex Court has held that generally speaking the shortlist has to be in the ratio of 3:5 candidates per post, a larger bench of four Judges of the Apex Court has in Ashok Kumar Yadav & Ors. v. State of Haryana (supra) held that the number of candidates to be called for interview should not exceed twice or at the highest, thrice the number of vacancies to be filled. No material has been placed before us to show that besides the 81 notified vacancies, other vacancies had been reported to the Commission before the preparation of the shortlist and the ranked list. Therefore, it cannot be said that adequate number of candidates were not included in Ext. P6 shortlist or in the ranked list published on 2.7.2005. In any case, the ranked list contained more than 3 times the number of notified vacancies and from the ranked list, 258 candidates were also advised. Therefore, we find no illegality in the preparation of Ext. P6 shortlist or the ranked list published by the Commission on 2.7.2005 for the post of Veterinary Surgeon Grade II in the Animal Husbandry Department."

In regard to W.A. No. 1749 of 2011 also, it is contended that the method of advising NJD candidates is absolutely wrong and unless sufficient number of candidates are included in the ranked list and the ranked list is periodically upgraded depending upon the available vacancies, the persons who are eligible will not get the opportunity for employment.

Heard the learned counsel appearing for the appellants as well as the learned counsel appearing on behalf of KPSC.

The only question to be decided in these appeals is whether there is any illegality or perversity in the judgment of the learned Single Judge with reference to the factual situation arising in the case. Even according to the petitioners, though there were 116 vacancies during the pendency of the ranked list, Ext. P3 letter was issued by the Director of Higher Secondary Education indicating reduction of the number of available vacancies and stated that such vacancies will only be 73. In the counter affidavit filed by KPSC, it is clearly indicated that at the time of finalisation of the shortlist on 26/06/2007, only 39 vacancies were reported which consisted of 22 fresh vacancies and 17 NJD vacancies. It is, based on the said reported vacancies, that the shortlist was prepared including 286 candidates consisting of 95 candidates in its main list and 191 candidates in the supplementary list. It is not in dispute that the shortlist consisted of more than 7.33 times of the reported vacancies and the main list itself consisted of more than 2.43 times of the reported vacancies. The ranked list was published on 17/11/2008 consisting of the aforesaid 286 candidates. Under such factual circumstances, the learned Single Judge has rightly come to the conclusion that KPSC has followed the law laid down by the Full Bench judgment in Ravidas'' case (supra).

It is also evident that the petitioners have approached this Court only at a time when the ranked list was about to expire. The only question that was required to be considered in the writ petition was whether there is any illegality on the part of KPSC in publishing the ranked list. In so far as the petitioners have no contention that the KPSC has violated any of the norms relating to the publication of ranked list, it may not be possible for this Court to interfere with the ranked list. It is clear that sufficient number of candidates was shortlisted and the vacancies were filled up, in accordance with the procedure prescribed. The ranked list also has expired and merely for the reason that the petitioners did not get an opportunity for employment, it does not mean that KPSC has acted against any specific statutory provision. The only contention urged was regarding violation of the law laid down by the Full Bench. On facts, learned Single Judge had found that KPSC had substantially complied with the law laid down by the Full Bench. As far as NJD vacancies are concerned, the learned Judge had observed that KPSC had followed the norms prescribed for appointing persons in such vacancies. In the absence of any illegality or perversity in the said findings of the learned Single Judge, we do not think that the grounds urged by the appellant is sufficient to set aside the said judgment.

In the result, these writ appeals are dismissed.