Kerala High Court
Kerala Public Service Commission vs L. Sheejamol M.C on 7 October, 2020
Equivalent citations: AIRONLINE 2020 KER 1275
Bench: A.M.Shaffique, Sunil Thomas, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
Wednesday, the 7th day of october zo2o/Lstn Aswina, 1942
wA No.1191/2016
Against Judgment dated 3!/07/2015 in lrtPC No.5881/201.4 of this Court.
APPELLANT,/2ND RESPONDENT :
KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY,
KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM,
PIN: 695 004.
BY SRI. P.C.SASIDHARAN, STANDING COUNSEL
RESPONDENTS/PETITIONER & 1ST RESPONDENT:
L. SHEEJAMoL M.C.,W,/0.A.P.NANDAKUMAR,
RESTDTNG AT ALADY HoUSE, rRrNGoL P.0.,
PERUMBAVooR -
683 548.
2. ERNAKULAM DISTRICT CO-OPRATIVE BANK LTD.,
THRTKKAKARA, KAKKANAD -
682 030, REPRESENTED BY ITS SECRETARY.
BY ADVS.M/S.KALEESWARAM RAJ & A.ARUNA FOR R1
SRI.N.RAGHURAJ, STANDING COUNSEL FOR R2.
This Wrlt Appeal having come up for orders on 07.10.2O2O upon perusing
the appeal memorandum, and this Court's order dated 2o-o8-2ot8, the court on
the same day passed the following:
P. T.0.
SK
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE SUNIL THOMAS
&
THE HONOURABLE MR.JUSTICE GOPINATH P.
wednesday, the 7th day of october 2o2o/tsth Aswina, t942
t'l,A No.174012016
Against Judgment dated 31.07.2075 in WPC No.5881,/2014 of this Court.
APPELLANT/1ST RESPONDENT :
ERNAKULAM DISTRICT CO-OPERATIVE BANK, HEAD OFFICE,
KAKKANAD, KOCHI-682 O3O, REPRESENTED BY ITS SECRETARY.
SRI. N. RAGHURAJ, STANDTNG COUNSEL
RESPONDENTS./IdRIT PETITIONER AND 2ND RESPONDENT:
t. SHEEJAMoL M. C.,AGED 35, W/0. A.P.NANDAKUMAR,
RESTDTNG AT ALADY HOUSE, rRrNGoL P.0., PERUMBAVOOR-683 548.
2. KERALA PUBLTC SERVTCE CoMMTSSToN,REPRESENTED BY rrs SECRETARY,
KERALA PUBLIC SERVICE CoMMISSION, PATToM, THIRUVANANTHAPURAM-695 004.
ADV.SRI.KALEESWARAM RAJ FOR R1.
SRI.P.C.SASIDHARAN, STANDING COUNSEL FOR R2.
This V'rrit Appeal havlng come up for orders on 07.10.2020 upon perusing
the appeal memorandum, and this Court's order dated 2o-o8-2't8, the court on
the same day passed the following:
P. T.0.
SK
W.ANo.u9!zor6 &W.ANo.rZ4o/ zol:6 -2-
ttc.R.tt
A.M.SHAFFIQUE, SUNILTHOMAS & GOPTNATH p., JJ.
W.A.No.r rgl / 2e16 & W.A.No.rT4o / 2oL6
Dated this the 7ft dayof Octobe\ 2o2o
ORDER
Gopinath, J.
This matter has been placed before the Full Bench upon reference by a Division Bench of this Court through an order dated zo.o8.zor8 in W.A.Nos. 1191 and r74o of zo16 arising from the judgment dated gr-o7-2or5 in W.P (C) No. 588r of zot4. The facts may be briefly noticed. Ttre writ petitioner was included in a ranked list for the post of Clerk-cum-Cashier in various District Co- operative Banks. She was included in Part I of the list as Rank No.S7 (the list was prepared in z parts since the selection was from z different sources). The candidates up to Rank No.56 in Part I of the list were advised for appointment by the Kerala Public Seruice Commission taking into consideration the vacancies reported by various District Co-operative Banks. It appears that the person at Rank No.S4 did not join duty as a result of which there was a Non- Joining Duty (NJD) vacancy in the Ernakulam District Co-operative Bank (the 'Bank'). Thereupon the writ petitioner filed W.P.(C) No.588t/2ou4 in which an interim order was issued on 2g.S.2ot4 directing the Bank to report the Non-Joining Duty vacancy before W.A.No.u9!zot6&W.ANo.r74ol 2c16 -g-
3o.o,6.2o:^4, on which date, it is not disputed, the ranked list expired. There is considerable controversy at the bar as to whether the Bank had complied with the interim direction. While the Bank would take the stand that the order had been complied with, by informing the Commission that a candidate at Rank No.54 of the list had not joined duty, the Public Service Commission would take the stand that there was no reporting of the NJD vacancy in the prescribed proforma which was mandatory in terms of a Government Order namely, G.O.(P)No.g8/rggz/P&ARD dated 18.9.L992.
2. The Writ Petition was finally disposed of by judgment dated gr.7.2oL1, by which date the ranked list had already expired. As can be seen from the judgment of the learned single Judge, the Bank took up a contention that it could not fill up the vacancy in question on account of the changes in staff pattern as a consequence of the downgrading of the bank by the regulatory authorities under the Kerala Co-operative Societies Act. The learned Single Judge, on a consideration of the matter, found, on facts, that no direction could be issued to appoint a person in a particular vacancy if, the employer had for bonafide reasons (as in this case) decided that the vacancy should not be or cannot be filled up. The learned Single Judge noticed that the Bank did not intend to take any stand regarding the inability to appoint the Writ W-A..No.u9!zot6&W.ANo.rT4o/ zor:6 -4- Petitioner on the ground that the list had expired. It was found that since the candidate at Rank No.S4 had not joined, a direction could be issued to appoint the writ petitioner to the next arising vacancy. This was to be done, if the position of the Bank improves with time, by treating the writ petitioner to be in the ranked list that may be prepared subsequently by the Kerala Public Senrice Commission. The Kerala Public Service Commission, therefore, filed W.ANo.rrytlzor6 while the Bank filed W.A.No.r74o/zor6 challenging the judgment of the learned single Judge.
B. The reference is on account of the fact that the Division Bench was of the opinion that the judgment of a Division Bench of this Court in Publdc Service Cotnrmssron v. Gouindornl to the extent it holds that this Court cannot issue orders directing the Public Service Commission to advise candidates from an expired ranked list, even if an interim direction had been issued earlier to report certain specific vacancies was, possibly, a departure from the view taken by a Full Bench of this Court in Stcte of l(erols. u. Sreeko.ndo'rt2. The reference order also notices that that the petition seeking the review of the judgment in Sreekorndorn (supra) was dismissed (vide the judgment reported as
1.
zooo(r) KLT 33
'. tgg1 (r) I(LT ro7
W.A.No.u9!zot6&W.A.No.rZ4o/ zot6 -S-
Vbng,lc,kutnorri u. States). We must notice straight away that nothing turns on the rejection of the review petition on account of the fact that the review was sought by candidates who were included in the ranked list in question in that case, on two specific grounds; (i) that the uieus taken by thefull Bench that the rqnked list hauing expired there u)as no question of directing the Public sertsice commission to aduise candidates, does not lay dousn the correct position in laus and; (ii) that relief had been granted by the fulI Bench to persons usho had not fiIed any original petition before the Courf. Therefore, the dismissal of the review petition really does not have a bearing on the issue to be decided. As already noticed, reading the judgment in Gouindorn (supra), the Division Bench, in the reference order, perceived a departure from the view expressed in Sreelco,ndan (supra). However, it appears to us that both these judgments declared, in no uncertain terms, that no direction can be given to advise candidates from an expired ranked list. In Sreekorndorn (supra), it was held "The ranked list hauing expired, the question of directing the Public Seraice Commission to aduise the petitioners does not arise". However we must note that in Sreekolndo'n (supra) this Court proceeded to direct the appointing authori$ (State of Kerala in that case) to appoint four persons mentioned in paragraph rz of the judgment after noticing '. rgg4@) KLT+z (FB) W.A.No.u9!zor6&W..A.No.r74o/ 2oL6 -6- that an interim order to report 7 vacancies had only been partly complied with by reporting 3 vacancies. Sreekandorn (supra) having been rendered by a Full Bench is binding on us, unless we were to take the view that the ratio of Sreekotndorn (supra) requires reconsideration by a larger Bench.
4. The Division Bench, in the reference order dated zo.o8.zor8, was of the opinion that the failure of an appointing authority to report a vacancy or vacancies, in spite of specific directions issued by this Court, within the validity of the ranked list, and a contention being taken thereafter that the ranked list has expired would lead to devastation of justice and further that this will lead to loss of faith in the judicial system. It was in the light of this specific finding that the Division Bench opined that the judgment in Goudndsn (supra) requires to be reconsidered.
S. We have heard Sri. P.C. Sasidharan, learned Counsel appearing for the appellant in W.A.No.rtgtf zo16, Sri. N. Raghuraj, learned counsel appearing for the appellant in W.ANo.r74o/zot6 and Sri. Kaleeswaram Raj, learned counsel appearing for the t.t respondent in these appeals (the writ petitioner).
6. The learned counsel appearing for the Kerala Public Service Commission would refer to the judgments in Sreekorndorn (supra), Bclcrlcrishnorn v. PSC4 , Virnalorktnnorri (supra), o.tgg4 (r) KLT+go(DB) W.A.No.u9!zor6&W.A.No.rZ4o/ zot6 -T-
Gouindorn (supra), Kerola hftIic Swuice Commrssron v. Shcrndl l(urnorr, S.S. Babu ornd. arnother v. State of l(erala cind. others6 and Subeena v. State of Keralaz and the provisions of the Public Service Commission Rules of Procedure tg76 (Kerala) to contend that there is no question of advising a candidate from a ranked list that has expired. He would contend that the direction given by the Full Bench in Sreelccndon (supra) was on account of the peculiar situation in that case and it can be treated only as the exercise of extraordinary jurisdiction of this Court under Article zz6 of the Constitution of India to direct the appointment of candidates dehors the normal provisions in the Rules by invoking Rule gg of Part II of the Kerala State & Subordinate Service Rules, 1958. He would specifically point out to the fact that all the judgments, which have considered the question regarding advice from an expired ranked list, referred to above, have taken the view that the Court cannot direct the advice of any candidate from an expired ranked list. He would further contend that mere inclusion in the ranked list does not give the candidate any vested right to claim appointment. He would also contend that the view taken in Gouindan (supra) is completely in tune with the s. zoo2 (r) KLT 6o+
6. zoog(z) SCCqZg
7. zorg (g) KLT 735 (DB) W.ANo.u9!zot6&W.A.No.r74o/ zot6 -B-
law laid down by the Full Bench in Sreelcandon (supra), though reference was not made to that judgment and therefore that there was no reason to revisit the law laid down in Goudndon (supra). He would also contend with reference to the judgment of this Court in Sreeko'ndoln -lVair v. Murq.leedhsrcrn]VcrilJ that there was public interest in defining the life of a ranked list in as much as newly qualified candidates should also get a chance to compete for appointment and all vacancies which arise either prior to or after the publication of a ranked list cannot be monopolised by candidates in a particular list contending that the said list must be operated till the last candidate is appointed. He would with reference to the facts of the present case point out that the notification inviting applications for the post of Clerk-cum-Cashier in District Co-operative Banks was issued on 24.4.2c,e,6. The ranked list was published on 91.12.2009 and had expired on ge.6.2el^4 following extension of its validity by the Public Service Commission. A reference to these dates, he would submit, show that if the ranked list was not to expire with a specific time limit, several candidates, who would acquire the qualification after the last date prescribed in the relevant notification, would not get a chance of employment or even a chance to compete for public employment for years together. He would state that a Division
8. (r99r) z KLT SN 3 = r99r Lab.I.C.zr63 WA.No.u9!zot6&W.A.No.r74o/ zor:6 -9- Bench of this Court in Sreekoindorn lVcfr v. Murs.leedharan lVtrdr (supra) elaborately considered this issue and had specifically found that it would be unjust and unreasonable and violative of the guarantee of equality of opportunity under Articles 14 and 16 of the Constitution of India to keep a ranked list in operation for perpetuity. The learned counsel appearing for the appellant in W.ANo.rV4lzor6 would support the contentions of the learned standing Counsel for the Public Service Commission and would assert that an employer may, for good and sufficient reasons, take a decision not to fill up a particular vacancy/vacancies and merely because an interim order had been given to report a particular vacancy, the employer cannot be compelled to appoint persons against such vacancy.
7. Per contra the learned counsel appearing for the contesting respondent (the writ petitioner) would contend that the Division Bench of this Court in Goudndan (supra) had clearly ignored the binding precedent of Sreekorndoin (supra) and had taken a wrong view without reference to that judgment. He would also contend that the majesty of the Court should not be belittled by a failure to comply with its interim order and a contention taken later that the order was incapable of compliance on account of the fact that the ranked list in question had expired should not be countenanced. He would also point out that the concern expressed W.A.No.u9!zot6&W.ANo.r74o/ zol.6 -1o-
in the reference order following which this matter is placed before the Full Bench is the consequence of failure to comply with an interim order/final order of this Court to report certain vacancies before the expiry of a ranked list. He would urge that we must consider and answer this issue alone. He would also support the view taken by the learned single Judge.
8. In view of the questions arising from the order of reference and the contentions raised before us, the following issues are framed for consideration: -
(I) Is the failure of an appointing authority to comply with an interim direction issued bg this Court to report speciftc uqcancies before the expiry of the ranked list, a ground fo pcss a final order directing the appointing authority to fiII Lq) uacancies from the rankedlist which has, by passoge of time, expired ?
(i0 If the answer to the afore.said is in the affirmatiue, what are the circumstances in ushich such an order utould be passed as in Sreekclndorn (supra) directing the appointing authority to filI up specific uacancies from the rqnked list ushich has expired? (it) Can fhis Court be approached to compel an appointing authority to fiII W uacancies from a ranked list prepared by the Public Seruice Commission a)en lf the appointing authority/employer does not intend to fiII up that partianlar uacancy/uacanciesfor genuine and bonafide reasons? [Ttris issue W.A.No.u9!zot6&W..dNo.r74o/ zol.6 -11- arises on account of the fact that in the facts of the cases placed before us, the appointing authority (the Ernakulam District co- operative Bank Limited) took up the specific contention that they did not intend to fill up the vacancy in question on account of certain orders issued by the regulatory authorities under the Co-operative Societies Act downgrading their status as a result of which there was a reduction in the number of posts to be filled upl.
g. We have bestowed our anxious attention to the contentions raised by both sides and answer the issues framed and the reference in the following manner:-
Issues (I) & (U)
10. These issues can be conveniently considered together.
The question as to whether this Court will direct vacancies to be filled up from a ranked list prepared by the Public Service Commission, after its validity has expired, is no longer res integra. Sreekorndorn (supra) held that this was not possible, and this view got reiterated when the petition seeking review was dismissed through Vilnclo.lantnorri (supra). This view appears to have been consistently followed by different benches of this Court sitting in v. PSC, Pubtic Squice Division. (See Bo,lalcrishnsn Cornrnission v. Gouindoin and l(el":cla htbtic Seruiee Commrssion v. Shornil Kurnorr which have been referred to W.A.No.u9!zor6&W.ANo.rZ4o/ 2oL6 -L2- above). We are therefore of the view that there can be no direction issued to advise candidates from a ranked list which has expired in terms of the provisions contained in the Rules of Procedure framed by the Kerala Public Service Commission. We are also fortified in taking this view in the light of the recent judgment of the Supreme Court in Aneesh l(utnor V.S. antd. Others u.,Stcte of l(ero,la alnd" Otherss dismissing the Civil Appeal filed challenging the Full Bench judgment of this Court in Aneesh I<.P. and. Others u.
State of Kerala ornd. Otherslo.It was held: -
"27. The Full Bench also took notice of the fact that the
uscancies were reported after a gap of more than eight months on 72.7.2ot6 and that the last (third) aduice was made on t7.7r.2ot5. The FuII Bench taking notice of the settled legal position, as e.xpounded fn S.S. Balu (supra), Kerala Pubkc Sensice Commission u. Shanil Kumar, Lal Sudheer u. Kerala State Road Transport Corporation, Secretarg, Kerala Public Seruice Commission u. Sheeja P.R. and Nair Seruice Societg u. Distt. Officer, Kerala Pubkc Seraice Commission, usent on to hold that bg nous it is uell established that the Commission (KPSCI cannot aduise anA candidate after the expirA of a Rsnked List. euen to an NJD uacancA. f such uqcancies qre reported after the expirA of the list in question. We agree uith this opinion of the Full Bench." (Emphasis is ours) s. zozo SCC Online SC gg8
10. zorg (r) KLT 896 (F.B) W'A..No.ug ! zo:.:6 & W.A.No. 17 40 / 2oL6 -13-
11. Then the question is whether the fact that a direction had been issued bythis Court to the appointing authority concerned before the expiry and during the validity of the ranked list, to report vacancies to the Public Service Commission should result, as in Sreekandant, a direction to the appointing authority to fill up those vacancies following the ranking in the ranked list which has expired, on the premise that the failure of the appointing authority to comply with such direction, justifies it. Our reading of Sreeko'ndorn (supra) does not lead us to conclude that such a direction must necessarily follow. It is true that in Sreekorndorn (supra) a direction was issued to the appointing authority (the State of Kerala in that case) to appoint four candidates who would have been appointed had all the vacancies been reported pursuant to the interim order referred to in the judgment. Such direction was issued despite the fact that the ranked list had expired. However, we do not see any principle of law of universal application as having been laid down in Sreelcorndqn (supra) that such a direction must follow in every case where there is a failure to report vacancies in spite of a specific direction. This is not to say that the extraordinary jurisdiction of this Court under Article zz6 of the Constitution of India would not extend to the issuance of such directions if circumstances warrant such directions being issued. We cannot lay W.A.No.u9!zot6&W.ANo.r74o/ zot6 -r4- down any parameters for the exercise of such jurisdiction. Whether or not such directions need be issued will depend to a great extent on the facts and circumstances of each individual case. We hold that a direction as given in Sreekoindorn (supra) will be issued only in exceptional cases and in the rarest of situations where this Court comes to the conclusion, on final adjudication of the lis, that the appointing authority had purposefully and with malafide intentions failed to comply with the directions issued by this Court. We are also of the opinion that the direction issued in Sreekorndorn (supra) was not on account of the existence of Rule 99 of Part II of the Kerala State & Subordinate Service Rules, t9S8 and that even in the absence of a similar Rule (in cases where the said Rule has no application) this Court can, if circumstances warrant, issue similar directions.
Issue No.III
12. We are now called upon to consider the third issue i.e. whether the existence of vacancies and the existence of a valid ranked list would require the employer (the appointing authority) to fill up those vacancies before the expiry of the ranked list either on account of the fact that a direction had been issued by the Court/Tribunal to report vacancies or otherwise. We would think not. The question as to whether a particular vacancy or vacancies should be filled up is a matter to be considered by the appointing W.ANo.u9!zor6 &WA.No.r74o/zot6 -r5- authority. If for any reasonable and bonafide reasons, including the financial situation of the appointing authority, such authority takes the position that the vacancies in question need not be filled up it would not be proper for this Court to thrust upon the unwilling employer (appointing authoriff) candidates included in a ranked list for it is settled law that mere inclusion in a ranked list does not give to the candidates in question a vested right to appointment. The law on this point is settled by the judgment of a Constitution Bench of the Supreme Court in Shanlcerrsan Dash u. Union of Indio,ll and we do not see any other judgement which has watered down this principle. The opening paragraph of that judgment reads thus: -
"This appeal was earlier heard bA a Diuision Bench qnd u)as referred to a Constitution Bench fo, examining the question ushethera candidste uhose name appears in the merit list on the basis of a competitiue examination, acquires indefeasible right of appointment as o gouernment serttant if a uacancy exisfs. Reference usas made to the decisions in State of Haryana u. Subash Chander Mqrwaha [(tgZd S SCC z2o : 19ZS SCC (I&S) 488 : (tgZ+) r SCR t6;l , Neelima Shangla u. Stqte of Hargana [(tg96) + SCC z68 : tg86 SCC (L&S) 7S9l and Jqtinder futmar u. State of Punjab [(t98il t SCC r22 : 1985 SCC (L&S) 174 : OgSd r SCR 8991"
tt.(r99r) g SCC +Z W.A.No.ug ! zot6 & W.A.No. 17 4o / zoli6 -r6- Considering the question, it was held (paragraph 7 of SCC) "7. It is not corcect to sag that if a number of uacancies are notified appointment and adequate number of for candidates are found fit, the successfuI candidates acquire crn indefeasible right to be appointed ushich cannot be legitimately denied. Ordinarilg the notification merely amounts to aninuitationto quakfied candidates to applgfor recruitment and on their selection they do not acquire any right to the post. Unless the relet:ant recruitment rules so indicate, the State is under no legal dutA tofill up all or anq of the uacancies. Houseuer, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the uacancies has to be taken bonafide for appropriqte ressons. And if theuacancies or ang of them are filled up, the State is bound to respect the comparatiue merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistentlg foWoued bg this Court, and use do not find any discordant note in the decisions in State of Haryana u. Subash Chander Marasaha [(tgZA g SCC zzo : 1975 SCC (L&S) 488 : (ryf) r SCR t67l , Neelima Shangla u. Stqte of Haryana [(tg96) + SCC z68 : t9B6 SCC (IB.S) 7S9l , or Jatinder Kumar u. State of Punjab [(tg9d t SCC t22 : 19BS SCC (L&S) 174 : QgBd r SCR B99l ."
Thus the fact that there are vacancies in existence in a particular cadre in Government or in any organization and the fact that there is a valid list prepared by the Public Service Commission or any W.A.No.ugt/zot6&W*A,.No.rZ4o/ zot6 -L7- other agency (in cases where consultation with the Public Seruice Commission is not mandated either in terms of the Constitution or any other law) is no ground for a Court to direct the filling up of such vacancies.
13. We therefore answer the reference in the following manner: -
(I) The judgment in Public Seruice Cotnrnissionv. Gouindorn (supra) does not require reconsideration. TLre judgment conforms in every respect to the law laid down by the firll Bench of this Court in Stcte of l(eralau. Sreekortlrdorn (supra). If this Court were to conclude on final adjudication of the lis that a particular appointing authority has purposefully and with malafide intentions refused to comply with interim directions issued to report certain vacancies before the expiry of the ranked list then, this Court on consideration of individual facts and in the rarest of rare situations may direct appointment of candidates included in the ranked list which has expired, as was done in Sreelcandan;
(II) An appointing authority ffi€ry, for good and sufficient reasons, take a decision not to filI up existing vacancies and merely on account of the fact that there is a ranked list in force, this Court will not, in exercise of its jurisdiction under Article 226 of the Constitution of Ind.ia, compel the appointing authority to fill up W.A.No.rr9!zot6&W.ANo.r74o/ zor.6 -rB-
' ' those vacancies. Circumstances such as financial difficulties, or as in the facts of these cases, orders of statutory authorities resulting in reduction of the number of vacancies or abolition of posts etc. would be good and sufficient reason for the appointing authority to take a decision not to fill up the vacancies.
Having answered the reference, we direct the Registry to place these writ appeals before the appropriate Bench for disposal.
(sd/-) A.M. SHAFFIQUE, JLIDGE (sd7-1 SITNIL THOMAS, JUDGE (sd/-) GIOPINATII.P., JT.TDGE acd