Kerala High Court
Kerala Public Service Commission vs Yadhukrishnan.P on 5 October, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942
OP(KAT).No.19 OF 2019
AGAINST THE ORDER DATED 23-11-2018 IN OA 1986/2018 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/RESPONDENT No.1:
KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY THE SECRETARY, PATTOM,
THIRUVANANTHAPURAM,KERALA-695004.
BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
RESPONDENTS/APPLICANTS & RESPONDENTS 2 & 3:
1 YADHUKRISHNAN.P
S/O .P.KUNHIKRISHNAN, KRISHNA KRIPA,
PADINHATTAM KOZHUVAL,NEELESWARAM.P.O,
KASARAGOD, KERALA-671314.
2 AKHIL.T.K
S/O BALAKRISHNAN.T.K, THACHALAKUNNUMAL,
BALUSSERY.P.O,KOZHIKKODE,KERALA-673612.
3 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA,
HOME DEPARTMENT,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
4 STATE POLICE CHIEF,
STATE POLICE HEAD QUARTERS,
THIRUVANANTHAPURAM-695014.
R1-2 BY ADV. SRI.NAVANEETH D.PAI
R3-4 BY SR. GOVT PLEADER SRI. T. RAJASEKHARAN NAIR.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 05.10.2020, ALONG WITH OP(KAT).38/2019, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
O.P(KAT)Nos.19 & 38/2019 -2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942
OP(KAT).No.38 OF 2019
AGAINST THE ORDER IN OA 2046/2018 DATED 23-11-2018 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/RESPONDENT No.1:
KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY THE SECRETARY, PATTOM,
THIRUVANANTHAPURAM, KERALA - 695004.
BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
RESPONDENTS/APPLICANTS & RESPONDENTS 2 & 3:
1 AKHIL.M.SISUPAL
S/O.SISUPALAN, MANTHARAYIL HOUSE, NADAKKAVU P.O.,
UDAYANPEROOR, KOCHI-682 307, ERNAKULAM, KERALA.
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT OF
KERALA, HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
3 STATE POLICE CHIEF,
STATE POLICE HEAD QUARTERS,
THIRUVANANTHAPURAM - 695 014, KERALA.
R1 BY ADV. SRI.S.SUJIN
OTHER PRESENT:
R2 & R3 SRI. T. RAJASEKHARAN NAIR-SR.G.P.,
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 05.10.2020, ALONG WITH OP(KAT).19/2019, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
O.P(KAT)Nos.19 & 38/2019 -3-
JUDGMENT
(OP (KAT) Nos.19 & 38/2019) Dated this the 5th day of October, 2020 Gopinath, J:
These original petitions have been filed by the Kerala Public Service Commission ('the PSC') challenging the common order dated 23-11-2018 in OA (EKM) No.1986/2018 and OA (EKM) No.2046/2018 on the file of the Kerala Administrative Tribunal. The two applicants in OA No.1986/2018 are respondents 1 & 2 in OP (KAT) 19/2019 and the sole applicant in OA (EKM) No.2046/2018 is the 1st respondent in OP (KAT) 38/2019. For the sake of clarity the parties are referred to as they appear before the Tribunal unless otherwise indicated.
2. The applicants before the Tribunal were included in a ranked list for the post of Sub Inspector of Police (Trainee). The said ranked list was brought into force on 26-05-2015. There was a previous ranked list for the same post which was brought into force on 11-09-2013. The candidates included in that list had raised a dispute regarding filling up of certain Non-Joining Duty (NJD) vacancies. There were interim orders regarding the filling up of the NJD vacancies from the ranked list published on 26-05-2015. The issue raised by candidates included in the ranked list published on 11-09-2013 was decided by a Full Bench of this Court in OP (KAT) No.256/2017 and connected cases [reported in 2019 (1) KLT 896 (F.B)]. We need not for the purpose of this case notice, in any great detail, the fact situation in the cases decided by the Full O.P(KAT)Nos.19 & 38/2019 -4- Bench except to note that this Court held that the candidates included in the ranked list published on 11-09-2013 cannot have any claim to the 93 NJD vacancies which were reported on 12-07-2016. This on the specific finding that on application of 1st proviso to Rule 13 of the Kerala Public Service Commission Rules of Procedure (hereinafter referred to as 'Rules of Procedure' for short) the ranked list published on 11-09-2013 would, after excluding the period of operation of interim orders interdicting the appointments from that list, expire on 10-06-2016. The judgment of the Full Bench was challenged before the Supreme Court. The matter has been decided through judgment dated 24-04- 2020 in Civil Appeal No.2368/2020 and connected civil appeals [Reported in 2020 SCC OnLine SC 398].
3. The applicants had approached the Tribunal with a prayer that they are entitled to be advised and appointed in respect of vacancies arising and reported upto 01-11-2018. This claim was made on the basis that the only batch that was sent for training from the list published on 26-05-2015 had commenced their training only on 02-10-2018 and therefore that on the application of the 1 st proviso to Rule 13 of the Rules of Procedure, the ranked list published on 26-05- 2015 would continue in force till 01-11-2018. The Tribunal had accepted the case put forth and held that the action of the Public Service Commission in treating the ranked list published on 26-05-2015 as having expired on 25-07-2018, the date on which the 191 candidates were advised from that list cannot be countenanced in the light of the clear provisions of the 1 st proviso to Rule 13 of the Rules of Procedure. The Tribunal therefore held that all vacancies which were reported upto 01-11-2018 have to be filled up from the ranked list published on O.P(KAT)Nos.19 & 38/2019 -5- 26-05-2015. The Tribunal directed the reporting of vacancies (both NJD and otherwise) that had arisen upto 01-11-2018 to the Public Service Commission for advice from the rank list published on 26-05-2015. The Tribunal further directed that advice memos shall be issued to those in the ranked list published on 26-05- 2015 in respect of vacancies so reported and that candidates so advised shall be sent for necessary training by the 3 rd respondent before the Tribunal (the State Police Chief). It is challenging these directions that the Public Service Commission had filed the above original petitions.
4. We have heard Sri. P.C. Sasidharan, learned Standing Counsel appearing for the Public Service Commission (the PSC) and Sri. N.N. Suganapalan, learned Senior Counsel, instructed by Sri. Sujin S., appearing for the applicants before the Tribunal (party respondents in these original petitions) and Sri. T. Rajasekharan Nair, learned Senior Government Pleader appearing for the State of Kerala and the State Police Chief.
5. Learned Standing Counsel for the PSC would contend that the Tribunal erred in law in holding that a person included in a ranked list which has admittedly expired by the date on which the Tribunal pronounced its orders can be advised for appointment. He further contend that the provisions of the 1 st proviso to Rule 13 had undergone an amendment through notification dated 04- 04-2016 and going by the amended provisions the question of the list having validity till 01-11-2018 does not arise. He would also contend that the principle actus curiae neminem gravabit will not apply for more than one reason. Firstly he says that the operation of the ranked list brought into force on 26-05-2015 was never interdicted and that the only orders in matters filed by those in the O.P(KAT)Nos.19 & 38/2019 -6- previous ranked list were in respect of NJD vacancies. Secondly he says that the principle cannot be applied as it is settled law that the principle had no application in the matter of advise from a rank list even if reporting of vacancies etc were interdicted by orders of court. Reliance in this regard is placed on the judgment of a Division Bench of this court in KPSC v. Dr. Kesavankutty Nair [1977 KLT 818].
6. Learned Senior Counsel appearing for the applicants/party respondents would vehemently contend that the principle actus curiae neminem gravabit is applicable and that the Full Bench of this court while deciding OP (KAT) No.256/2017 and connected cases [2019 (1) KLT 896 (F.B)] had held that in determining the validity of the ranked list the period during which there was a stay of its operation either on account of the appointing authority being directed not to report any vacancy or on account of any direction to the PSC not to advise any candidates had to be excluded in determining the validity of the ranked list. He would further point out that the 1st proviso to Rule 13 of the Rules of Procedure before its amendment was to be applied for the reason that the ranked list in question was brought into force prior to the amendment of the 1 st proviso which, was on 04-04-2016. He would also point out from a press release relating to decisions taken/adopted by the PSC on 3 / 4 of July 2017 that it had been decided that the provisions of the amended proviso will not apply in respect of notifications issued prior to 15-04-2016. He would therefore contend that the Tribunal was correct in concluding that the validity of the ranked list published on 26-05-2015 was clearly till 01-11-2018 on account of the fact that the only batch deputed for training from that list commenced their training only on 02- O.P(KAT)Nos.19 & 38/2019 -7- 10-2018 which, according to him means that on application of the unamended provisions of the 1st proviso to Rule 13 of the Rules of Procedure the ranked list would expire only on 01-11-2018 i.e., one month from the date of commencement of the training of the last batch.
7. We have considered the contentions raised by either side. We are of the opinion that the 1st issue to be considered is whether the applicants before the Tribunal would be entitled the benefit of the first proviso to Rule 13 of the Rules of the Procedure. As we have seen, the entire case projected by the applicants before the Tribunal and the decision rendered by the Tribunal were on the basis that the applicants were entitled to the benefit of the 1 st proviso. Rule 13 and the first proviso to Rule 13 of the Rules of Procedure prior to its amendment in 2016 read as follows:
"The ranked lists 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.
Provided that the above rule shall not apply in respect of ranked lists of candidates for admission to Training Course that leads to automatic appointment to Services or posts and that in such cases the ranked list shall cease to be in force after one year from the date of finalisation of the ranked lists or after one month from the date of commencement of the course in respect of the last batch selected from the list within a period of one year from the date of finalisation of the ranked lists whichever is later."
(Emphasis is ours) In paragraph 53 & 54 of the Full Bench judgment in OP (KAT) No.256/2017 and connected cases the effect of the 1st proviso has been noticed as under. O.P(KAT)Nos.19 & 38/2019 -8-
"53. Pertinently, after the Rule provides thus, its first proviso, which is exclusively confined in its application to a Rank List of candidates for admission to a training course that leads to automatic appointment into service or post, postulates that such a Rank List will cease to be in force either :
a) after one year from the date of finalization of the Rank List;
or
b) after one month from the date of commencement of the training of the last batch, selected from the said list within a period of one year from the date of finalization of the said list; whichever is later. (emphasis supplied)
54. The sum total of these provisions, which position is also expressly conceded by the various counsel for the petitioners, is that the First Rank List dated 11.09.2013 would have, normally, in the absence of a challenge to it, remained in force either till 10.09.2014 or till a date after one month from the date of commencement of the training of the last batch of candidates selected from that list within a period of one year from its finalization."
Significantly when the judgment of the Full Bench of this court in OP (KAT) No.256/2017 and connected cases was challenged before the Supreme Court. While disposing of the Civil Appeals the Supreme Court had referred to the ranked list brought into force on 26-05-2015 as the 2 nd ranked list or 'RL-II'. In paragraph 7 of the judgment of the Supreme Court it has been found that a total number of 284 vacancies were filled up from the ranked list published on 26-05- 2015. It will be appropriate to extract paragraph 7 of the judgment of the Supreme Court to the extent relevant for the purpose of deciding the issue.
"7. However, during pendency of Civil Appeals (C.A. Nos. 8356/2015 and 8537/2015 @ SLP(C) Nos. 28428/2014 and 28743/2014), the KPSC had released a new list on 26.5.2015 [for short, "second Ranked List (RL-II)"] and thereby the first Ranked List (RL-I) was treated as ceased to exist on 25.5.2015.
O.P(KAT)Nos.19 & 38/2019 -9-
Advice made from the second Ranked List (RL-II)
Date of Date of No. & Nature No. of unfilled
Date of advice Remarks
Receipt Requisition of vacancy vacancies
19-10-2015 07-10-2015 1 NJD 23-07-2018
Advised as per
12-07-2016 12-07-2016 93 NJD 26-02-2019
court order
11-05-2018 11-05-2018 162 Fresh
*Only 5
23-05-2018 23-05-2018 12 Fresh +5 AV 23-07-2018 advised. 12
advised later.
25-05-2018 25-05-2018 2 NJD
17 (12
23-05-2018 23-05-2018 vacancies 25-07-2018
advised
11-07-2018 11-07-2018 9 Fresh 23-07-2018
Total advise : 284
Ranked list expired on 25-07-2018
From the above it is clear that the appointing authority had sent requisitions to the KPSC for appointments from ranked list published on 26-05-2015, on 07-10-2015, 12-07-2016, 11-05-2018, 23-05-2018, 25-05-2018 and 11-07-2018 and that a total number of 284 persons were advised from that list which was treated as having expired on 25-07-2018. In respect of 93 NJD vacancies which was subject matter of the litigation before the Full Bench and before the Supreme Court though the date of requisition is on 12-07-2016 the date of advise was only on 26-02-2019 i.e., after the decision of the Full Bench holding that the these 93 vacancies cannot be filled up from the previous list published on 11-09-2013. Reading of the 1st proviso to Rule 13 (unamended) shows that the terms of the proviso which provide that the ranked list shall cease to operate within one year from the date of finalization of the ranked list or after one month from the date of commencement of the course in respect of the last batch selected from the list within the aforesaid period of one year from the date of finalization of the ranked O.P(KAT)Nos.19 & 38/2019 -10- list can be applied only in respect of candidates advised within the period of one year from the date of finalization of the ranked list and not later. This is the interpretation that was placed on the proviso by the Full Bench of this court in OP (KAT) No.256/2017 which is evident from a reading of paragraph 53 and 54 of the judgment of the Full Bench which we have extracted herein above. Thus without examining the controversy as to whether the provisions of the amended proviso would be applicable in the facts of this case we can safely conclude that even if the provisions of the unamended proviso were to apply, the applicants before the Tribunal cannot have a case that the ranked list published on 26-05- 2015 should continue to operate until 01-11-2018 with reference to the date of commencement of training of the candidates advised from that list since the advice following which the concerned were deputed for training was not clearly within the period of one year from the date of finalisation of the list.
7. Learned Senior Counsel for the applicants would then contend that the period during which list published on 26-05-2015 was not operational on account of various interim orders etc at the instance of persons included in the earlier list brought has to be excluded to determine as to when the list brought into force on 26-05-2015 would expire. According to him this will definitely have a bearing on the application of the unamended 1 st proviso to Rule 13 of the Rules of Procedure. The learned Standing Counsel for PSC would assert that even if we were to apply the principle laid down by the Full Bench in excluding the period during which there was an interdiction in respect of operation of a list through court orders, that principle cannot have any application here on account of the fact that there was no absolute stay in respect of list brought into force on 26-05- O.P(KAT)Nos.19 & 38/2019 -11- 2015 and the interim orders in question only related to the 93 NJD vacancies which was subject matter of litigation before the Full Bench and finally before the Supreme Court. We do not find from the records anything to suggest that the submission of the learned Standing Counsel is incorrect in any manner. We are, therefore, unable to accept the contentions raised by the learned Senior Counsel for the applicants that the period of stay must be excluded in determining as to when the list brought into force on 26-05-2015 would have expired.
8. The learned Standing Counsel for PSC would also point out that as is evident from the judgment of the Supreme Court in Civil Appeal No.2368/2020 and connected cases yet another ranked list was published on 14-03-2019. It is submitted that the vacancies to which the applicants lay claim were filled up by advising candidates from this ranked list brought into force on 14-03-2019 and in the absence of persons so advised and appointed it would impossible for this court to grant any relief to the applicants. We find that this contention is also well founded. As already noticed the Tribunal had directed that all vacancies NJD or otherwise arising upto 01-11-2018 have to be filled up from the ranked list brought into force on 26-05-2015. These vacancies (if reported) have obviously been filled up from the ranked list brought into force on 14-03-2019. In the absence of persons so advised and appointed on the party array it may not proper for us to adjudicate and decide the claims raised on behalf of the applicants. Of course when the Tribunal allowed the original applications the subsequent ranked list had not been published. However, since it is asserted before us that that vacancies in question have been filled up by candidates included in the ranked list published on 14-03-2019 we feel that the persons so O.P(KAT)Nos.19 & 38/2019 -12- advised and appointed have subsequently acquired substantial interest in the outcome of these proceedings and it would be improper to grant any relief in their absence.
9. There is yet another reason why we cannot sustain the relief granted by the Tribunal in these cases. in Aneesh Kumar V.S. and Others v. State of Kerala and Others [reported in 2020 SCC OnLine SC 398] dismissing the Civil Appeal filed challenging the Full Bench judgment of this Court in Aneesh K.P. and Others v. State of Kerala and Others [reported in 2019 (1) KLT 896 (F.B)]. The Supreme Court holds: -
"27. The Full Bench also took notice of the fact that the vacancies were reported after a gap of more than eight months on 12.7.2016 and that the last (third) advice was made on 11.11.2015. The Full Bench taking notice of the settled legal position, as expounded in S.S. Balu (supra), Kerala Public Service Commission v. Shanil Kumar, Lal Sudheer v. Kerala State Road Transport Corporation, Secretary, Kerala Public Service Commission v. Sheeja P.R. and Nair Service Society v. Distt. Officer, Kerala Public Service Commission, went on to hold that by now it is well established that the Commission (KPSC) cannot advise any candidate after the expiry of a Ranked List, even to an NJD vacancy, if such vacancies are reported after the expiry of the list in question. We agree with this opinion of the Full Bench." (Emphasis is ours) Therefore the Tribunal went wrong in directing the PSC to advice candidates from a ranked list which had already expired.
For all the aforesaid reasons we allow these original petitions by setting aside the order dated 23-11-2018 in OA (EKM) No.1986/2018 & OA (EKM) O.P(KAT)Nos.19 & 38/2019 -13- No.2046/2018. In the facts and circumstances of the cases we make no order as to costs.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P. JUDGE AMG O.P(KAT)Nos.19 & 38/2019 -14- APPENDIX OF OP(KAT) 19/2019 PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE RELEVANT PAGES OF THE RANK LIST DATED 26/5/2015 PUBLISHED BY THE KERALA PUBLIC SERVICE COMMISSION CATEGORY NO. 253/2014.
ANNEXURE A2 TRUE COPY OF THE ORDER DATED 24/06/2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM O.A. 963/2015.
ANNEXURE A3 TRUE ORDER DAD 14/07/2017 OF THE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM OA (EKM), NO. 1130/2015.
ANNEXURE A4 TRUE COPY OF THE LETTER DATED 04/08/2018 ISSUED KERALA PUBLIC SERVICE COMMISSION IDS 1 (4)/4973/2018/GW.
ANNEXURE A5 TRUE COPY OF THE APPLICATION INVITING FOR THE POST OF SUB INSPECTOR, DATED 12/06/2014 CATEGORY NO.
253/2014 TO 256/2014 .
ANNEXURE A6 TRUE COPY OF THE JUDGMENT DATED 15/10/2008 PASSED BY THE HONBLE HIGH COURT OF KERALA.
ANNEXURE A7 TRUE COPY OF THE LETTER DATED 15/10/2018 ISSUED BY THE STATE POLICE CHIEF, THIRUVANANTHAPURAM NO.
E7/67376/2018/PHQ.
EXHIBIT P1 TRUE COPY OF THE O.A.(EKM)NO.1986 OF 2018 WITH ITS ANNEXURES.
EXHIBIT P2 TRUE COPY OF THE ORDER IN O.A.NO.(EKM)1986 OF 2018 DATED 23.11.2018.
O.P(KAT)Nos.19 & 38/2019 -15-APPENDIX OF OP(KAT) 38/2019 PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE RELEVANT PAGES OF THE RANK LIST DATED 26/5/2015 PUBLISHED BY THE KERALA PUBLIC SERVICE COMMISSION CATEGORY NO. 253/2014.
ANNEXURE A2 TRUE COPY OF THE ORDER DATED 24/06/2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM O.A. 963/2015.
ANNEXURE A3 TRUE ORDER DATED 14/07/2017 OF THE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM OA (EKM) NO.
1130/2015.
ANNEXURE A4 TRUE COPY OF THE LETTER DATED 04/08/2018 ISSUED KERALA PUBLIC SERVICE COMMISSION IDS 1 (4)/4973/2018/GW.
ANNEXURE A5 TRUE COPY OF THE APPLICATION INVITING FOR THE POST OF SUB INSPECTOR DATED 12/06/2014 CATEGORY NO.
253/2014 TO 256/2014.
ANNEXURE A6 TRUE COPY OF THE JUDGMENT DATED 15/10/2008 PASSED BY THE HONBLE HIGH COURT OF KERALA.
ANNEXURE A7 TRUE COPY OF THE LETTER DATED 15/10/2018 ISSUED BY THE STATE POLICE CHIEF THIRUVANANTHAPURAM NO.
E7/67376/2018/PHQ.
EXHIBIT P1 TRUE COPY OF THE O.A.(EKM) NO.2046 OF 2018 WITH ITS ANNEXURES.
EXHIBIT P2 TRUE COPY OF THE ORDER IN O.A.NO.(EKM) 2046 OF 2018 DATED 23.11.2018.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 NIL.
EXHIBIT R1 (A) TRUE COPY OF THE INFORMATION DATED 15.11.2018. EXHIBIT R1 (B) TRUE COPY OF THE LETTER OF THE DGP ON 13.10.2018. EXHIBIT R1 (C) TRUE COPY OF THE COMMUNITY VISE LIST OF 48 CANDIDATES ADVISED.
EXHIBIT R1 (D) TRUE COPY OF THE ORDER PASSED ON 10.06.2019. EXHIBIT R1 (E) TRUE COPY OF THE APPOINTMENT ORDER ON 28 .06.2019 ISSUED BY THE DGP.
O.P(KAT)Nos.19 & 38/2019 -16-EXHIBIT R1 (F) TRUE COPY OF THE APPOINTMENT CHART ISSUED BY THE PSC.
EXHIBIT R1 (G) TRUE COPY OF THE APPOINTMENT CHART DATED 25.07.2018.