Kerala High Court
Gopakumar N vs State Of Kerala on 31 March, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939
WP(C).No. 4178 of 2017 (V)
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PETITIONER(S):
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1.GOPAKUMAR N.,
AGED 40 YEARS, S/O NARAYANAN,
KARTHIKA, VENKADAMBU,
KULATHOOR, UCHAKKADA P.O.,
NEYYATTINKARA,
THIRUVANANTHAPURAM. 695506.
2.PRASAD R.,
AGED 44 YEARS, S/O RAGHAVAN,
CHANKOOR PADEETTATHIL, PADA-SOUTH,
KARUNAGAPALLY P.O.,
KOLLAM. 690518.
3.JAFAR T.,
AGED 29 YEARS, S/O ABDULLA,
TRASSERI (H),
KARAYA, PANDIKKADE P.O.,
MALAPPURAM-676521.
4.MUHAMMED SALI K.,
AGED 41 YEARS,S/O KAMARUDEEN KUNJU,
OLAKKATTUVILA, KOIVILA P.O.,
KOLLAM.691590.
5.DHANUSH K.,
AGED 34 YEARS, S/O KITTU,
PADINJARE VEEDU,
VENNAKKARA, NOORANI P.O.,
PALAKKAD.678004.
6.BASHEER D.,
AGED 39 YEARS, S/O ABDULLA,
POLLA HOUSE,
KANIAMBETTA,
WAYANAD.673121.
7.SUMESH C.S.,
AGED 34 YEARS, S/O SADIDHARAN,
CHIRAYIL HOUSE,
THIRUVARPPU P.O.,
KOTTAYAM. 686620.
WP(C).No. 4178 of 2017 (V)
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8.ANIL KUMAR S.S.,
AGED 34 YEARS, S/O SAM,
MELEMANGAMMEKKETHATTE PUTHENVEEDU,
KODANKKARA, MARIYAPURAM P.O.,
NEYYATINKARA,
THIRUVANANTHAPURAM.695122.
9.MANOJ T.,
AGED 41 YEARS, S/O MOOTHORAN,
THIRUTHIPALLY HOUSE,
KUNNAMMANALAM P.O.,
PERINGOLAM, KOZHIKODE. 673571.
10.ANISH N.P.,
AGED 36 YEARS, S/O PRABHAKARAN,
NEDIYANICKAL HOUSE, MUKKADAM P.O.,
IDUKKI. 685562.
11.SHIBUKUMAR P.,
AGED 38 YEARS, S/O PALAYAN,
SAPPOTTUKUZHA,
THEKKUMKARA ROADARIKKATHU VEEDU,
KILLIYOOR P.O.,
VELLARADA P.O.,
THIRUVANANTHAPURAM. 695505.
12.ABHILASH V.S.,
AGED 35 YEARS, S/O R.SUGATHAN,
VAZHATHOTTUNKAL, KUTHIRAPANTHY P.O.,
ALAPPUZHA -688002.
13.ABHILASH M.V.,
AGED 38 YEARS, S/O NARAYANAN,
MAVEKODAN VEEDU, ATTUKUDUKKA P.O.,
CHARUVALOOR, KANNUR. 670521.
14.DAVID P.C.,
AGED 36 YEARS, S/O CLEMANT,
VADAKKEL WARD, THIRUVAMBADY P.O.,
ALAPPUZHA. 688002.
BY ADVS.SRI.P.NANDAKUMAR
SRI.S.ANEESH
WP(C).No. 4178 of 2017 (V)
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RESPONDENT(S):
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1.STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.695001.
2.THE KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY THE SECRETARY,
PATTOM, THIRUVANANTHAPURAM. 695004.
3.THE KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY ITS SECRETARY,
VYDHYUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM. 695004.
R1 BY SR. OVERNMENT PLEADER B. UNNIKRISHNA KAIMAL
R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
R3 BY ADVS.SRI.M.K.THANKAPPAN, SC, KSEB
SMT.ANEETHA A.G., SC, KSEB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19-06-2017, ALONG WITH WPC. 5344/2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
EL
WP(C).No. 4178 of 2017 (V)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 31.3.2011
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR KOLLAM.
EXHIBIT P4 TRUE COPY OF RELEVANT EXTRACTS OF THE RANKED
LIST DATED 30.9.2013 FOR PATHANAMTHITTA.
EXHIBIT P5 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR IDUKKI.
EXHIBIT P6 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR KOTTAYAM.
EXHIBIT P7 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR ALAPPUZHA.
EXHIBIT P8 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR ERNAKULAM.
EXHIBIT P9 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR THRISSUR.
EXHIBIT P10 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST OF DATED 30.9.2013 FOR PALAKKAD.
EXHIBIT P11 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR MALAPPURAM.
EXHIBIT P12 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR KOZHIKODE.
EXHIBIT P13 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR WAYANAD.
EXHIBIT P14 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR KANNUR.
EXHIBIT P15 TRUE COPY OF RELEVANT EXTRACT OF THE RANKED
LIST DATED 30.9.2013 FOR KASARGOD.
EXHIBIT P16 TRUE COPY OF THE NOTIFICATION DATED 29.6.2016
ISSUED BY THE 2ND RESPONDENT.
WP(C).No. 4178 of 2017 (V)
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EXHIBIT P17 TRUE COPY OF THE LETTER DATED 29.12.2016 OF
THE 1ST RESPONDENT.
EXHIBIT P18 TRUE COPY OF THE NOTIFICATION DATED 30.12.2016
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P19 TRUE COPY OF THE REPLY LETTER DATED 21.1.2017
RECEIVED UNDER THE RTI ACT FROM THE 3RD
RESPONDENT.
RESPONDENT(S)' EXHIBITS
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NIL
TRUE COPY
P.S. TO JUDGE
EL
P.V.ASHA, J.
W.P.(C) Nos.4178 & 5344 of 2017
Dated this the 19th day of June, 2017
JUDGMENT
WP(C) No.4178 of 2017
The action of the Kerala Public Service Commission (hereinafter referred to as 'PSC'), in denying the benefit of extension of validity period to certain ranked lists, on the ground that those ranked lists were once extended, is under challenge in these writ petitions.
2. The petitioners are candidates who submitted applications for selection and appointment to the post of Mazdoor (Electricity Worker) in the Kerala State Electricity Board (`Board' for short), pursuant to Ext.P1 notification published by the PSC, on 31.3.2011, for all the Districts in Kerala. The rank lists Exts.P2 to Ext.P15 were published by PSC on 30.9.2013. The petitioners are persons included in those rank lists.
3. The normal validity period of a rank list published by the PSC is three years. Therefore, the rank lists Exts.P2 to P15 were due to expire on 30.9.2016. While so Government, by its letter dated 23.6.2016, forwarded its decision recommending the PSC to extend the period of validity of the rank lists which were in force for a period of six months or till the publication of a new rank list or till the completion of 4= years, whichever came earlier. Thereafter, PSC, by W.P.(C) Nos.4178 & 5344/2017 :2: Ext.P16 notification published in Kerala gazette extraordinary dated 29.6.2016, issued under the 5th proviso to Rule 13 of Kerala Public Service Commission Rules of Procedure (hereinafter referred to as 'the Rules'), extended the period of validity of all the rank lists which were in force on 30.6.2016 and those due to expire during the period from 30.6.2016 to 30.12.2016 for a period of six months upto 31.12.2016 subject to the following conditions:
i. The ranked lists shall cease to be in force when they complete a period of 4= years.
ii. The ranked list shall cease to be in force on the date on which a fresh ranked list for the same post is brought into force.
iii. This shall not be applicable in respect of ranked lists for posts which involve training in the uniformed forces and ranked lists of candidates for admission to trainee course that lead to automatic appointment to services or posts.
4. Thereafter, on 29.12.2016, the Government again addressed the PSC as per Ext.P7 letter recommending extension of the rank lists which were not granted extension and which were due to expire by 31.3.2017, up to 30.6.2017. On the basis of Ext.P17 recommendation of the Government, PSC issued another notification Ext.P18 on 30.12.2016 keeping alive the rank lists which were due to expire as on 31.12.2016, for a further period of six months i.e, up to 30.6.2017, on the following conditions:
1. This extension will not be applicable to those ranked lists whose validity period have already been extended by virtue W.P.(C) Nos.4178 & 5344/2017 :3: of the notification No. AV(2)4182/02/GW dated 29th June 2016 and expire on 31.12.2016.
2. The ranked list shall cease to be in force on the date on which a fresh ranked list for the same post is brought into force.
3. This shall not be applicable in respect of ranked lists for posts which involve training in the uniformed forces and ranked lists of candidates for admission to training courses that lead to automatic appointment to services or posts.
5. The petitioners are aggrieved by condition No.1 in Ext.P18, by which they could not enjoy the benefit of extension for the reason that their ranked lists had got extension for a period of 3 months from 29.09.2016 upto 31.12.2016 on the basis of Ext.P16 notification.
Petitioners challenge this condition alleging that the same is arbitrary and discriminatory.
6. The petitioners pointed out that on the basis of the extension ordered in Ext.P16, the benefit of extension for their ranked list was only for a period of three months. Their ranked lists expired on 31.12.2016 on completion of three years and three months. It is also pointed out that the post of Electricity Worker/mazdoor is one for which the educational qualification prescribed is the minimum and thus the candidates like the petitioners in the ranked lists for the lowest strata in service, several of whom have become overaged by this time, are the affected parties. According to them, there are vacancies available under the respondent Board and in the event of W.P.(C) Nos.4178 & 5344/2017 :4: extension, they had a fair chance of getting appointment. It is also pointed out that there was ban on appointments on different occasions on account of elections to Local Authorities, Kerala Legislative Assembly as well as to the Parliament.
7. The writ petition is filed seeking a declaration that selective extension of rank lists made by the 2nd respondent as per Ext.P18 is unconstitutional, and for a direction to extend the validity period of the rank lists Exts.P2 to P15 up to 30.6.2017.
8. The PSC has filed a counter affidavit. According to them, the rank lists Exts.P2 to P15 expired on 31.12.2016 after availing the benefit of extension by three months time. It is further stated that the recommendation of the Government to the PSC was to extend the validity period of all rank lists which were in force for a period of six months or till the publication of new rank list or till completion of 4= years, as per its letter dated 23.6.2016 and PSC had after examining the matter in detail, decided to extend the period of validity of all the rank lists which were in force and were due to expire by 31.12.2016, from 30.06.2016 to 31.12.2016 subject to the conditions mentioned in Ext.P16.
9. Learned counsel for the petitioners points out that the 2nd respondent has not stated anything regarding the declaration sought W.P.(C) Nos.4178 & 5344/2017 :5: or regarding the limiting of the benefit of extension only to those rank lists which were not extended or in other words for excluding the rank lists from the purview of Ext.P18 extension and that would amount to admission of the allegations in this writ petition. The contention of the petitioners is that when the PSC found it necessary to extend the rank lists, it can be only on the basis of the circumstances which warranted extension. Such a circumstance would also be available in the case of rank lists which were granted extension as per Ext.P16 also.
10. Sri.P.Nandakumar, the learned counsel for the petitioners argued that condition no.1 in Ext.P18 notification is arbitrary as well as discriminatory and it is ordered in gross disregard of the purpose of the 5th proviso to rule 13 of the Rules. Learned counsel also referred to the judgment of the Apex Court in Thulaseedharan v. KPSC : 2007 (3) KLT 19 (SC), in order to point out that the circumstances in that case were entirely different, as the decision in that case to extend the ranked lists, was taken by the PSC on 02.04.2004 after the expiry of the ranked list on 31.03.2004. On the other hand the extension by Ext.P18 notification was issued at a time when Exts.P12 to P16 ranked lists were in force. Therefore, it was argued that the decision of the Apex Court that the power to extend the ranked list under the 5th proviso to Rule 13 is to be exercised only in the case of the rank lists W.P.(C) Nos.4178 & 5344/2017 :6: which are still subsisting, will not stand in the way of granting relief to the petitioners.
11. I have considered the contentions raised on both sides. It is pertinent to note that the counter affidavit of the PSC is silent on the contentions raised in the writ petition regarding the notification Ext.P18 or the reason for imposing condition no.1, which is alleged to be for the first time in the history, while exercising its power under the 5th proviso to Rule 13. It only says that the ranked lists in question expired on 31.12.2016 enjoying an extension by three months.
12. The validity period of a rank list is dealt with in Rule 13 of the KPSC Rules of Procedure. It provides that the rank list published by the PSC shall remain in force for a period of one year and the list will continue to be in force till the publication of a new list after expiry of a minimum period of one year or till the expiry of three years whichever is earlier. The extension of the validity period is governed by 5th proviso to Rule 13, which reads as follows:
"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 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 W.P.(C) Nos.4178 & 5344/2017 :7: 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."
13. Therefore the power under the 5th proviso to Rule 13, to extend the validity period of a ranked list can be exercised only if the PSC arrives at the satisfaction that one of the conditions mentioned therein exists. The conditions are existence of general ban declared by the Government on reporting of vacancies to the PSC; or of any other circumstances; or of any other extra ordinary situation by which the vacancies could not be reported as appointing authority was prevented or restricted or delayed. When it is satisfied of such circumstances, it can extend the validity period of a ranked list which is due to expire. That extension has to be for a minimum period of 3 months and shall not exceed one and a half year in the aggregate. On such extension it shall be published by a notification and thereafter the PSC can make advice against vacancies reported during the extended period.
14. In this case the Government as well as the PSC, arrived at the satisfaction that the ranked list required extension on both occasions, i.e before Ext.P16 and thereafter when Ext.P17 recommendation was made and when Ext.P18 notification was issued extending the ranked lists. Therefore, the rank lists Exts.P2 to P15 got W.P.(C) Nos.4178 & 5344/2017 :8: extension by 3 months and exclusion from Ext.P18 notification. The extension by Ext.P16 up to 31.12.2016, was based on the recommendation of the Government.
15. On 29.12.2016, the Government again recommends for a further extension, excluding those ranked lists which had enjoyed the benefit of extension, irrespective of the period of extension they got, on account of the outer limit fixed upto 31.12.2016. The PSC considers this recommendation and takes a decision exactly in accordance with the recommendation without even examining whether any such exclusion of those ranked lists which got extended once, was warranted under the rule and extends the validity period of all other ranked lists upto 30.06.2017 provided no list exceeds 4= years.
16. When the PSC chose to extend the validity period of the ranked list again for a further period of 6 months, within a period of 6 months on which Ext.P16 notification was issued, it should be deemed that the circumstances as provided in the 5th proviso which prevailed on 29.06.2016 continued to exist on 30.12.2016 also. It would appear that the PSC simply accepted the recommendation of the Government and extended the validity period, without any application of mind and without any consideration of relevant factors. In this background, it can be seen that the PSC denied the benefit of extension to certain W.P.(C) Nos.4178 & 5344/2017 :9: ranked lists like that of Exts.P2 to P15, despite being satisfied of the existence of the circumstances in respect of those lists also, which warranted extension under the 5th proviso, merely for the reason that it was extended once. The PSC failed to take notice that even those ranked lists which got extension by one day or even one month were excluded from the purview of the extension. Such exercise of power can only be termed arbitrary apart from being discriminatory.
17. It cannot be said that the circumstances available during three year validity period of the rank lists like Exts.P2 to P15 warranted extension of 3 months alone. The only restriction which could be imposed could be the maximum period of 4= years and publication of new ranked list. It is pertinent to note that the words and expressions "aggregate" employed in the rule as "or for such other periods but not exceeding one and a half year in the aggregate"
envisage more than one extension. In the above circumstances, there is no legal basis for the selective extension or selective exclusion.
18. As rightly pointed out by the learned counsel for the petitioners, there cannot be any extra ordinary circumstances for certain lists alone so that the PSC can arrive at the satisfaction to exercise its powers under the 5th proviso in respect of certain other lists. Therefore, condition number 1 in Ext.P18 notification which W.P.(C) Nos.4178 & 5344/2017 :10: excludes the ranked lists whose validity period was already extended as per Ext.P16 notification and expiring on 31.12.2016, is vitiated by not only non-application of mind but also by negation of equality. There is no rational basis for the classification of the ranked lists imposing condition no.(1), for the purpose of extension of the rank lists when the extension is permissible only under circumstances provided in 5th proviso.
19. The recommendation of the Government as well as the decision of the PSC to confine the benefit of extension to the rank lists which are not extended so far is therefore arbitrary and unreasonable. The PSC which is a constitutional functionary, on which the unemployed youth of this State repose confidence, with their legitimate expectation that their fundamental rights for equality of opportunity in matters relating to employment would be protected, cannot be permitted to act arbitrarily.
20. It is relevant to note that the PSC had taken a decision to extend the rank list at a time when Exts.P2 to P15 rank lists were in force. Therefore, as contended by the learned counsel for the petitioners, the circumstances in Thulaseedharan's case (supra), were not available in the present case and the said judgment is not at all applicable to the facts and circumstances of the case. W.P.(C) Nos.4178 & 5344/2017 :11:
21. In these circumstances of the case, the decision leading to Ext.P18 can only be found to be one arrived at without considering relevant factors. The allegation of the petitioners that the PSC has adopted such a procedure for the first time in its history is not disputed. It is pertinent to note that there is no denial of the allegations raised by the petitioners regarding the extension by Ext.P18. The candidates like the petitioners who got into a rank list with much effort, cannot be subjected to such unfair and discriminatory treatment, which deprives not only their fundamental right for equality before law and equal opportunity for employment under the State, but their right to livelihood also in violation of Articles 14, 16 and 21 of the Constitution of India.
In the above circumstances, it is declared that condition No.1 in Ext.P18, which excludes the ranked lists covered by Ext.P16, from the benefit of extension is arbitrary and hence the ranked lists Exts.P2 to P15 are entitled to the benefit of extension as per Ext.P18 notification. WP(C) No.5344 of 2017
In the light of the judgment in WP(C) No.4178 of 2017, this writ petition is also allowed. The ranked list Ext.P1 in this case for appointment as Meter Readers in Water Authority, would be entitled to the benefit of extension under the notification of PSC dated W.P.(C) Nos.4178 & 5344/2017 :12: 30.12.2016.
Both these writ petitions are allowed accordingly.
Sd/-
P.V.ASHA JUDGE rkc