Sarija J.S vs Kerala Public Service Commission on 17 June, 2015

[Cites 4, Cited by 1]

Kerala High Court

Sarija J.S vs Kerala Public Service Commission on 17 June, 2015

'Can the Public Service Commission (PSC) initiate Selection proceedings before the vacancies are reported by the Requisitioning Department/Institution/Employer', is the question mooted for consideration. If not, is the 'third proviso' to Rule 13 of the Kerala Public Service Commission Rules of Procedure enabling the PSC to take steps for preparation of new Ranked list, wherever necessary, even before the expiry of the period of one year of the ranked list, by inviting applications, however effecting publication of the list only after expiry of the period of one year of the existing ranked list, valid in the eye of law?

2. The grievance of the petitioners appears to be that, pursuant to Notification (Annexure A1) of the year 2010, they got O.P.(KAT)No.305 OF 2015 2 included in the ranked list which was published in February/March, 2014 and before expiry of one year, steps were initiated by the PSC effecting A7 Notification on 12.06.2014, leading to publication of a new ranked list on 04.5.2015, virtually resulting in cancellation of the existing list immediately after one year, thus losing the chance to get appointed against the vacancies of Women Excise Guard in the districts concerned.

3. A short recital to the factual sequence is necessary to understand the case and to deal with the issue. As per SRO.No. 587/2008, the Special Rules for Kerala Excise and Prohibition Subordinate Service were amended in the year 2008, whereby a new category of posts named as 'Women Excise Guard' was created and included along with Category No.3 of Excise Guards. Accordingly, a requisition was made to the PSC for selection and appointment to the post of Women Excise Guards ( now re- designated as Women Civil Excise Officer, similar to Women Police Officer in the Police Department). On receipt of the requisition, the PSC issued Annexure A1 Notification dated 31.08.2010 stipulating the qualifications and inviting applications for O.P.(KAT)No.305 OF 2015 3 appointment in all the 14 districts in Kerala; making it clear that it was a district-wise selection and that the vacancies were not estimated for the time being. As per 'Note 2' of the said Notification, it was also mentioned that separate ranked list will be prepared for each district in pursuance of the said notification and that the ranked list prepared and published by the Commission will remain in force for a minimum period of one year, subject to the condition that the list will continue to be in force till the publication of new list after the expiry of the minimum period of one year or till the expiry of three years, whichever was earlier. It was also stipulated that candidates will be advised for appointment against the vacancies reported during the currency of the list and in case no candidate was advised from the ranked list till the expiry of the period of three years, the duration of the ranked list shall be extended for a further period of one year or till atleast one candidate was advised from the list, whichever was earlier.

4. The petitioners, on satisfying the qualifications as prescribed in the Notification, participated in the process of O.P.(KAT)No.305 OF 2015 4 selection-both Written test as well as Physical efficiency test, and came out successful; by virtue of which, they got a placement in Annexures A2 to A6 ranked lists published for different districts in February/March 2014 (A5 ranked list in March, 2014 and A2, A3, A4 and A6 in February, 2014.) The issue involved in the present case is only with reference to the claim for appointment in the five districts, such as Kollam, Kottayam, Ernakulam, Thrissur and Kasaragod.

5. Based on the position of candidates in the ranked list, appointments were made, following the rules of reservation. The petitioners, by virtue of their lower position in the said list, could not get any advice and while so, the PSC issued Annexure A7 notification dated 12.06.2014 (just a few months after publication of Annexure A2 to A6 ranked lists) for the next exercise of selection. The said notification was not subjected to challenge then and there, and was sought to be challenged only much later by filing Ext.P2 (O.A.No.514 of 2015) on 12.06.2015 . The basic contention was that the applicants had a right for 'legitimate expectation' to be considered for appointment at least O.P.(KAT)No.305 OF 2015 5 for a period of three years. The further contention raised was that there was no need, necessity, occasion or authority for the PSC to have issued Annexure A7 notification, within 'one year' from the date of publication of Annexures A2 to A6 ranked lists, that too, without any requisition from the appointing authority. On publication of ranked lists pursuant to Annexure A7, the existing Ranked lists, i.e., Annexures A2 to A6 got expired by virtue of operation of law, thus spoiling the chances of the petitioners for ever. It was in the said circumstance, that the pleadings and prayers were moulded in the Original Application, particularly raising a challenge against the 'third proviso' to Rule 13 of the Procedural Rules, which enabled the PSC to initiate steps for selection and publication of a fresh ranked list even during the pendency of one year from the date of publication of the existing ranked list, however subject to the rider that it shall be brought into force only after expiry of the minimum period of one year of the existing ranked list.

6. After hearing both the sides, the Tribunal held that the Rules of Procedure of the PSC were only a codification of the O.P.(KAT)No.305 OF 2015 6 decisions of the PSC and hence non-statutory. However, it was observed by the Tribunal, that the principles for striking down the statutory rules could be applied, when the above rules were under challenge and would stand governed by the observations made by this Court in Pankajakshi vs. George Mathew [1987 (2) KLT 723 (DB)]. It was held that, going by the above norms, no ground had been raised to hold that the 'third proviso' to Rule 13 of the Procedural Rules was unconstitutional or ultravires in any manner, thus declining interference and dismissing the O.A. as per Ext.P1 order, which in turn is under challenge in this O.P.

7. Heard Mr. P.Nandakumar, the learned counsel for the petitioners, Mr. P.C. Sasidharan, the learned Standing Counsel for the P.S.C and also Mr. Rajasekharan Nair, the learned Sr. Government Pleader appearing for the second respondent.

8. The party respondents impleaded in the representative capacity did not turn up in response to the notice sent by this Court on 01.10.2015. Since the notice was not returned, substituted service by way of 'paper publication' was allowed as O.P.(KAT)No.305 OF 2015 7 per the order passed in I.A.No.16068 of 2015. Still, they have not entered appearance.

9. Crux of the submissions made by the learned counsel for the petitioners is that the recruitment process effected by the P.S.C. is governed by non-statutory guidelines. The P.S.C. has published an Office Manual containing the Office orders, Circulars and proceedings issued by the Commission from time to time. So also, the Commission has formulated Rules of Procedure in consultation with the Government and that the Rules of Procedure have been published in the State Gazette. Both the P.S.C. Office Manual and the P.S.C. Rules of Procedure are non- statutory, but there is no provision in either of them, which enables the P.S.C to initiate the process of selection, without vacancies being reported by the requisitioning authority. It is contended that, whether there is any vacancy or not; and whether such vacancy is to be filled up or not, are matters which exclusively come within the purview of the appointing authority and as such, unless and until the vacancies are reported by the appointing authority/requisitioning authority, no process of O.P.(KAT)No.305 OF 2015 8 selection can be initiated by the P.S.C. In the instant case, since no such request has been made, Annexure A7 notification dated 12.06.2014 issued by the PSC, just three months after publication of Annexures A2 to A6 ranked lists in February/March 2014, is not correct or sustainable. For the very same reason, consequential selection proceedings finalised by the P.S.C. and the Ranked List published as per Annexures-A8 to A12 are stated as not valid or sustainable in law and hence the challenge against the aforesaid Annexures.

10. It is also contended that, though for the posts like LD.Clerks and Last Grade Servants, suo motu selection notifications are being issued by the PSC (due to the reason that large number of vacancies in the said posts may arise every year), the position in the instant case is different as the very cadre of Women Excise Guard (Women Civil Excise Officer) is a newly created post and only very few vacancies are available . Though Annexure A1 notification was issued in 31st August 2010, it took nearly 'four years' for the P.S.C. to complete the process of selection, publishing Annexures-A2 to A6 ranked lists in O.P.(KAT)No.305 OF 2015 9 February/March 2014. As such, the petitioners were reasonably expecting that they will get appointment against the vacancies occurring within a period of three years, which came to be thwarted by the act of the P.S.C., having invited applications afresh, just a few months after publication of the ranked list; followed by publication of the new ranked list immediately after one year from the date of publication of the existing ranked list; thus causing the existing list to get expired by operation of law. The learned counsel also points out that the 'third proviso' to Rule 13 is against the main rule and it would not reconcile with the mandate of the 'last proviso' , [i.e. 4th proviso] to Rule 13, besides being violative of the fundamental rights of the petitioners, including violation of Article 14 and 16 of the Constitution of India .

11. The first respondent P.S.C. has filed a counter affidavit, referring to the sequence of events. The relevant particulars in respect of the selection effected in different Districts and the rank position under different categories, who were included in the main list and supplementary lists and those who have already O.P.(KAT)No.305 OF 2015 10 been advised from the ranked list during the currency of such list etc., have been given. It is also stated that the Commission had decided to conduct annual selection for various uniformed persons like Police, Fire and Rescue Service, Excise, Forest and Wild Life etc., and that notification for these posts shall be issued in the month of June every year, to have the ranked list finalised before June in the next year . The date of OMR test and probable date of Physical efficiency test are also being published along with the notification; by virtue of power conferred upon the PSC under the 'third proviso' to Rule 13 of the Rules of Procedure enabling to take steps for preparation of a new ranked list, wherever necessary, even before the expiry of the period of one year of the ranked list. It is stated that it is a 'policy decision' to conduct annual selections to certain posts and that the Rules of Procedure have been formulated in terms of the power conferred upon the PSC under Article 320 of the Constitution of India. The Commission adds that, though it is not a statutory rule in the strict sense, the Rules of Procedure were formulated in consultation with the State Government and O.P.(KAT)No.305 OF 2015 11 were notified in the Gazette dated 05.10.1976 as Item No.39 and hence even the PSC cannot amend the Rule without consulting the Government . The learned Standing Counsel for the P.S.C. submitted that the vacancy position pursuant to Annexure-A1 notification had became clear in the course of the proceedings and it was accordingly, that all the available vacancies were filled up by advising candidates from Annexures-A2 to A6 ranked lists which were kept alive for more than one year, till they got expired by virtue of publication of the new ranked lists on 04.05.2015.

12. In Annexure A1 notification dated 31.08.2010 , it was clearly mentioned that the vacancies were not estimated, as on that date. It was very much possible for the requisitioning authority to have had the assistance of the PSC to identify suitable candidates for appointment to the anticipated vacancies. By virtue of Article 320 of the Constitution of India, it is the duty of the PSC to conduct examination for appointment to the State Service and to advise candidates accordingly.

13. Rule 13 of the Rules of Procedure is extracted O.P.(KAT)No.305 OF 2015 12 below:

"13. 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.

Provided further that the provisions of the proviso above mentioned shall not be applicable for the selection for admission to the Forest Rangers Course and also for admission to the Diploma Course in Forestry for which selections have to be made annually in accordance with the instructions of the Government of India issued from time to time. For these selections, the ranked lists will be O.P.(KAT)No.305 OF 2015 13 in force only for a period of three months from the date of finalisation of the ranked lists or one month from the date of commencement of the course whichever is later..

Provided further that the Commission may take steps for the preparation of a new ranked list wherever necessary even before the expiry of the period of one year of the ranked list, by inviting application but that the ranked list prepared in pursuance of the said notification shall be brought into force only after the expiry of the period of one year of the existing ranked list. Provided further that a ranked list from which no candidate is advised during the period of one year from the date on which it was brought into force shall be kept in force till the expiry of three years from the said date and in a case where no candidate is advised from the ranked list till the expiry of the said period of three years, the duration of the ranked list shall be extended by the Commission for a further period of one year or till at least one candidate is advised from the list whichever is earlier.

Provided further that if the Commission is satisfied of the existence of a period of general ban declared by the Government on the reporting of vacancies to the Public Service Commission or of any other circumstances or of any extraordinary situation in which the reporting of vacancies by the appointing authorities is prevented or restricted or delayed , the Commission shall have the power to keep alive the Ranked Lists which are normally O.P.(KAT)No.305 OF 2015 14 due to expire during the said period for such periods as may be decided by the Commission subject to a minimum period of three months or for such further periods but not exceeding one and a half year in the aggregate. If the Commission so decides it shall issue a Notification keeping alive the Ranked Lists in the above manner and shall advise candidates from such Ranked Lists to the vacancies reported during such extended period of validity of the Ranked List. "

Even a cursory reading of the main Rule gives a clear idea that the intention is only to have a minimum validity for the ranked list, by a period of 'one year' from the date on which it is brought into force. However, with intent to see that there need not be a vacuum at least for a certain period, it is also stipulated that the said list, which is to have the minimum life of 'one year' will continue to be in force till publication of a new list, after the expiry of a minimum period of one year or till the expiry of two years whichever is earlier, which tenure subsequently came to be amended w.e.f. 04.09.1984, making it as 'three years ' in place of 'two years' .

14. The 'first proviso' to Rule 13, as it now appears, was O.P.(KAT)No.305 OF 2015 15 not in existence as such earlier, which came to be placed in only w.e.f. 01.10.1986. However, the 'third proviso' (which is the disputed proviso) was very much in existence for quite long, even when the validity of Rule 13 was challenged before this Court in Pylo vs. Public Service Commission ( 1985 KLT 830). According to the learned Standing Counsel for the PSC, the challenge raised against Rule 13 of the Rules of Procedure was repelled by a learned Single Judge of this Court and the validity of the provision was upheld. But the learned Judge held that the reason stated by the P.S.C. for inviting fresh applications within the period of 'one year' after publication of the existing Rank list was not correct and hence it was intercepted. Challenging the disputed extent of interference, the P.S.C. had filed an appeal and as per the verdict reported in 1986 KLT 46 [Public Service Commission vs. Pylo], a Division Bench of this Court reversed the direction passed by the learned Single Judge ; thus justifying the action of the P.S.C. in initiating the process of selection by inviting applications, though it was within one year from the date of publication of the existing ranked list. O.P.(KAT)No.305 OF 2015 16

15. According to the learned counsel for the petitioner, no challenge to the 'third proviso' of Rule 13 was involved in the above case and that the reference made by the Division Bench is only to the 'second proviso', as discussed in paragraph '9' of the said verdict. There is no dispute to the fact that the challenge raised by the petitioner in 1985 KLT 830 (cited supra) was against the validity of Rule 13, as such . The Rule very much includes the 'proviso' as well. The purpose of the 'proviso' is only to carve out an exception or to put on some riders and hence the entire provision will have to be read together. It was after hearing both the sides that the learned Judge of this Court upheld the validity of Rule 13, which has become final by virtue of the decision rendered by the Division Bench of this Court in 1986 KLT 46 (cited supra). Interference made was only with regard to the further course of action directed by the learned Single Judge to treat the existing ranked list as valid and to advise candidates from the said Ranked list, till expiry of three years from the date of publication.

16. It is relevant to note that the learned Single Judge was O.P.(KAT)No.305 OF 2015 17 quite categoric, as observed in paragraph 15 of the said judgment in 1985 KLT 830 (cited supra), that the Court was not suggesting that the practice of issuing notification and inviting applications by the PSC annually from candidates in relation to posts which are likely to have regular and annual intake in any manner was incorrect or illegal; adding that periodicity of such notifications was a matter entirely to be decided by the PSC. It was the correctness of the consequential direction given by the learned Single Judge, after upholding the validity of Rule 13 of the Procedural Rules, that was subjected to scrutiny by the Division Bench in 1986 KLT 46. The learned Judges observed in paragraph 8 that it was in discharge of the function/obligation under Article 320 of the Constitution of India, that the Commission has made Rules of Procedure. Rule 13 of the said Rules had been extracted therein, in particular, the disputed proviso, which reads as follows:

"13. The ranked lists published by the Commission shall remain in force for a period of one year O.P.(KAT)No.305 OF 2015 18 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.

xxxxxxxx xxxxxxxx Provided further that the Commission may take steps for the preparation of a new ranked list wherever necessary even before the expiry of the period of one year of the ranked list, by inviting application but that the ranked list prepared in pursuance of the said notification shall be brought into force only after the expiry of the period of one year of the existing ranked list."

It is the very same proviso, which has been referred to by the learned Judges in the next paragraph, i.e. paragraph '9', where it is referred to as the 'second proviso', (presumably with reference to the position as it existed then or by way of mistake). Paragraph 9 of the said verdict reads as follows:

"9. The operation of a ranked list is for a period of one year from the date on which it was brought into force, namely, the date of publication. The list will, however, continue to operate until a fresh list is published after the expiry of the initial period of one year or until the expiry of three years from the date of publication of the original list whichever occurs earlier. It is well within the O.P.(KAT)No.305 OF 2015 19 power of the Commission to bring out the second list immediately on expiry of the initial period of one year or at any time during the following two years. The date of publication of the second list is a matter entirely within the discretion of the Commission provided the initial period of one year has expired. The validity of the first list thus lasts till the publication of the second list or till the expiry of three years whichever is earlier. All this is subject to the second proviso which says that it is open to the Commission to take steps for the preparation of a new list even during the initial period of one year. It is therefore open to the Commission to prepare a new list and for that purpose issue a notification calling for applications , at any stage of the relevant period of three years. The only condition is that the list so prepared shall not see the light of day until the initial period of one year has expired. When that list is published,the earlier list ceases to operate. This construction of the Article is not seriously disputed at the bar. The learned Judge in fact accepted this construction."

17. From the above, it is clear that the validity of the entire Rules, inclusive of the present third proviso, (as it existed there without change) was considered by the learned single Judge of this Court, upholding its validity in 1985 KLT 830. The matter has become final by virtue of the verdict of the O.P.(KAT)No.305 OF 2015 20 Division Bench reported in 1986 KLT46. We fully agree with the said declaration. We do not find anything unconstitutional, ultravires or violative of the fundamental rights of the petitioners in this regard. But for the vague averment as to the violation of fundamental rights and the reference made to Article 14 and 16, it has not been substantiated by the petitioners as to how such rights, if any, are violated.

18. The issue can be approached in a different angle as well. There is no case for the petitioners that there is any bar with regard to the steps to be initiated by the PSC within one year, after publication of ranked list for fresh selection . Even the main rule , i.e. Rule 13 of the Kerala Public Service Commission Rules of Procedure, contemplates the intended minimum existence/validity period of the ranked list only to an extent of 'one year' and the rest is only an extended exercise, to make the list continue under the given circumstances, which by itself cannot give any vested right to the candidates like the petitioners to contend that they were legitimately expecting the rank list to have a life span of three years. The bar under the O.P.(KAT)No.305 OF 2015 21 main Rule (Rule 13) is only with regard to the publication of a fresh ranked list during one year from the date of publication of the existing ranked list and that's all. It does not say that the PSC shall not initiate steps or call for applications for preparing a fresh ranked list during the said period of one year. In so far as there is no prohibition, the PSC is well within its powers to proceed with appropriate steps in this regard, however, ensuring that no fresh rank list is published during the period of one year from the date of publication of the existing rank list.

19. The contention of the petitioners that there is no enabling provision in the Manual of the Rules of Procedure permitting the PSC to initiate the proceedings for fresh selection within one year, does not hold any water at all, in so far as the power and authority of the PSC to invite the application and to conduct selection is not under dispute. In so far as it is the duty of the PSC to conduct the selection and identify the suitable candidates, as envisaged under Article 320 of the Constitution of India and since the PSC is having power to regulate its own procedure, the PSC is justified in taking timely action to see that O.P.(KAT)No.305 OF 2015 22 no delay is resulted under any circumstance and that advice can be made from qualified and identified candidates based on their merit as and when vacancies are reported by the requisitioning authority. Normally, it will be sufficient for the P.S.C. to initiate steps for recruitment only after getting the requisition from the appointing authority. This is essentially for the reason that it is for the appointing authority to prescribe the qualification, experience and such other particulars, in terms of the job requirement and only after getting such idea, that the PSC can proceed with further steps. Such requisition can be with reference to the existing vacancies or in respect of anticipated vacancies. But once it is settled by virtue of the relevant provisions of law as to the age, qualification and such other aspects and once the initial requisition has already been made by the appointing authority, the same norms will continue till replaced by amendment of the Recruitment Rules. Unlike isolated posts, Women Excise Officers, like Women Police Officers or Lower Division clerks, Office Assistants, Class IV persons are abundant in number to cater to the need of the State/establishment. In so O.P.(KAT)No.305 OF 2015 23 far as a certain number of posts in the segment has been clearly identified and earmarked to be filled up by Women Civil Excise officers and since retirement of existing hands is definite every year, vacancies will arise as a matter of course, every year. Similarly, more and more candidates will get qualified every year and if selection is made on an annual basis in conformity with the relevant rules, giving validity for the Rank list for the minimum period of one year, the zone of consideration will get wider and most eligible candidates could be identified and recruited, preserving and maintaining the vigour and vitality of the disciplined force, which is very much within the larger public interest. Quite evidently, Annexure A1 notification was issued in the year 2010 and the initial round of selection could be conducted and finalised, only after 'four years', leading to publication of Annexures A2 to A6 ranked lists in February/ March, 2015. By this time, several other candidates got qualified, while several candidates got over-aged and as such, if the PSC has taken steps to conduct annual selection inviting applications based on the given qualifications/norms, making the O.P.(KAT)No.305 OF 2015 24 ranked lists ready to advise candidates as and when vacancies are reported, it can only be termed as a prudent action and never a colourable exercise of power . The contention raised to the contrary is only liable to be repelled.

20. Coming to the plea of 'legitimate expectation', there is no ambiguity in the provision, particularly the main Rule , i.e. Rule 13, which stipulates that the minimum validity of Rank list is only 'one year'. The extension of the said list beyond one year, as mentioned already, is only under the given circumstances. As such, the legitimate expectation , if at all any, could only be in respect of the minimum period of one year and nothing more. In so far as the ban in the main rule is only with regard to publication of fresh ranked list during/within the period of 'one year' from the date of publication of the existing Ranked List, initiation of proceedings is possible, though publication of the list has to be kept in abeyance, to be given effect to, only after one year. As such, the 'third proviso', which is now under challenge is only clarificatory in nature and even without that, the provision is very clear from the main rule itself. O.P.(KAT)No.305 OF 2015 25 In the above circumstance, this Court holds that the challenge raised by the petitioners against Ext.P1 order passed by the Tribunal is unfounded. The idea and understanding of the petitioners with regard to the scope of the relevant rule/provision of law is thoroughly wrong and misconceived.

None of the grounds raised in support of the petition does serve its purpose. The Original Petition fails and it is dismissed accordingly.

P.R. RAMACHANDRA MENON, JUDGE P. SOMARAJAN, JUDGE lk

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