IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 282 of 2008()
1. BENNY LALU.M.L., MUNAMPEL JOSE COTTAGE,
... Petitioner
2. BIJU.U, JEEJA BHAVAN, NEENDAKARA P.O.,
3. ASOK KUMAR.P., SUMATHY SADANAM
4. DHWIJESH,S/O.SAMBAN
5. K.S.SE4LVARAJ, KULAKANDATHI;
6. ASHOKA KUMAR,S/O.K.VASUDEVAN
7. SUNIL V.R.AMBATTUKUNNEL
8. LAIJUMON, C.V., CHERUVALLIPPADY HOUSE
Vs
1. STATE OF KERALA
... Respondent
2. THE DIRECTOR GENERAL OF POLICE
3. KERALA PUBLIC SERVICE COMMISSION
For Petitioner :SRI.N.N.SUGUNAPALAN (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :15/10/2008
O R D E R
J.B. Koshy & K.P. Balachandran, JJ.
————————————–
W.A. Nos.282, 302 & 403/2008
and W.P.(C) No.29153 of 2007-U
—————————————
Dated this the 15th day of October, 2008
Judgment
Koshy,J.
In all these cases, writ petitioners were included in the
rank list published by the Public Service Commission for the post of
Sub Inspector of Police (General Executive Branch) (Trainee). The
rank list is produced as Ext.P1 in W.P.(C) No.18624 of 2007 which
was published on 19.8.2006. The above rank list is prepared after
due selection process conducted in pursuance of notification dated
16.12.2003 produced as Ext.P1 in W.P.(C) No.3040 of 2008. The
said rank list was valid for one year from the date of publication.
Since the post in question is one to which appointment is preceded
by a mandatory training course, the rank list has validity of one year
from the date of its finalisation or one month from the date of
commencement of training of the last batch selected from the list
within the said period of one year whichever is later in terms of first
proviso to rule 13 of the Kerala Public Service Commission Rules of
Procedure (for short ‘PSC Rules’). Thus, one year period of validity
W.A. Nos. 282, 302 & 403/2008 and
W.P.(C) No.29153/2007 2
in so far as the rank list is concerned should normally expire on
18.8.2007. But, the list will remain valid for a period of one month
from the commencement of the training of the last batch. According
to the petitioners, 16 candidates for which vacancies were notified
during the currency of rank list were advised on 21.8.2007 and
their training commenced on 1.1.2008. Selection process is over as
soon as they are included in the ranked list. Their vacancies were
reported much before 18.8.2007. Since their vacancies were
reported much before 18.8.2007, within one year period and their
training commenced from 1.1.2008, the list will expire only with
effect from 1.2.2008. 57 promotions were effected to the post of
Circle Inspector of Police from the post of Sub Inspector of Police by
notification dated 28.12.2007 as can be seen from the Kerala
Gazette dated 8.1.2008. Out of the said 57 promotees, 51 were
direct recruits. Therefore, it is contended that over and above the
anticipated vacancies, the said 51 vacancies of S.I. of Police also
occurred within the validity period of rank list. In fact, Government
has reported 49 anticipated vacancies also during the currency of
the rank list. But, PSC refused to advise candidates to those
reported vacancies as those vacancies will occur only in 2008. The
list of promotees and gazette notification containing the list of
W.A. Nos. 282, 302 & 403/2008 and
W.P.(C) No.29153/2007 3
promotees from the rank of Sub Inspector of Police to the post of
Circle Inspector of Police is produced as Annexure VIII in W.A.No.403
of 2008. Their promotions were regularised by Government Order
dated 24.4.2008 (Annexure A-IV in W.A.No.302 of 2008). Their
effective date of promotion mentioned in the Government Order
shows that 39 vacancies (for direct recruitment in open quota) in
the post of S.I. of Police have arisen even prior to 18.10.2007 and,
therefore, it is contended that 39 vacancies actually occurred prior
to 18.10.2007. If that be so, 49 anticipated vacancies reported by
the Government were to the actual vacancies that occurred during
the currency of the rank list.
2. The contention of the PSC is that even though 16
vacancies were reported prior to 25.6.2007, the 16 candidates from
the rank list were actually advised by the PSC only on 21.8.2007.
Since the normal period of one year expired on 18.8.2007,
commencement of their training period cannot be taken into
account for extension of the validity period of rank list for a further
period of one month. In this connection, we refer to rule 13 and its
first proviso of the Kerala Public Service Commission Rules of
Procedure which is as follows:
“13. The ranked lists published by the
Commission shall remain in force for a period of
W.A. Nos. 282, 302 & 403/2008 and
W.P.(C) No.29153/2007 4
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:”
The method of appointment for the post of Sub Inspector of Police is
contained in Government Order G.O.(P) No.196 of 1995 dated
26.7.1995. The said order (Special Rules) provides that 50% of the
vacancies in the post of Sub Inspector of Police (General Executive
Branch) (Trainee) is to be filled up by promotion from among
Assistant Sub Inspectors and 50% by direct recruitment. The
Special Rules provide for direct recruitment from three categories:
One is from open market and 80% out of the 50% set apart for
direct recruitment will have to be filled up by the candidates from
the open category. Category (2) consists of the ministerial staff of
Police, Vigilance Department, Finger Print Experts of the Finger Print
W.A. Nos. 282, 302 & 403/2008 and
W.P.(C) No.29153/2007 5
Bureau and 10% of 50% of the total cadre strength is available
thereunder. Category (3) comprises of graduate police constable,
head constables and officers of corresponding rank in the police
department and the remaining 10% of the 50% is available for the
said category. We are concerned only with the first category.
Therefore, 80% of the 50% available for direct recruitment has to be
filled up from open candidates in pursuance to Ext.P1 notification.
50% is to be calculated on the basis of cadre strength of Sub
Inspector of Police (General Executive Branch). There were disputes
regarding the cadre strength. According to the petitioners 50% of
the cadre strength of Sub Inspectors (General Executive Branch) is
783. The learned single Judge, after considering the contentions
filed, found that the number of vacancies available to be filled up by
direct recruitment is 695. It is stated in the counter affidavit filed by
the Government that the existing strength of Sub Inspector of Police
was 455. 245 vacancies were reported on various dates by the
Government. Thus, about five candidates were advised in excess of
the quota though there will be some non-joining vacancies.
3. The following vacancies were reported subsequent to
the publication of the rank list:
W.A. Nos. 282, 302 & 403/2008 and
W.P.(C) No.29153/2007 6
"75 vacancies : 26.10.2006
155 vacancies : 04.12.2006
7 vacancies : 28.03.2007
8 vacancies : 25.06.2007."
Thus, 245 actual vacancies were reported by the Government.
Government also reported 49 anticipated vacancies on 29.6.2007.
Thus, vacancies were reported because even though substantial
vacancies of Sub Inspector of Police will arise in early 2008, the
persons who are advised will have to be given training for six
months. Therefore, steps should necessarily be taken for
appointment by training and here the notification is not for the
actual vacancies of Sub Inspector of Police, but, Sub Inspector
trainees. So, to fill up those vacancies of Sub Inspectors who were
to be promoted in January, 2008, trainees have to be advised six
months before the actual occurrence of vacancies. That is why
government reported 49 anticipated vacancies, but, PSC did not
advice candidates to those vacancies stating that they are
anticipated vacancies. Apart from the above 49 vacancies reported
by the Government, 30 vacancies were reported provisionally on the
basis of the interim directions of this Court in W.P.(C) No.27903 of
2007 and another 30 vacancies were also reported on the basis of
the directions in W.A.No.2038 of 2007. Even though those 60
W.A. Nos. 282, 302 & 403/2008 and
W.P.(C) No.29153/2007 7
vacancies were reported during the currency of the list as directed
by the Court, those vacancies were subject to the final decision in
the writ petition. Even without a direction of the court, 49
anticipated vacancies reported by the Government were also not
advised. So, there are actual vacancies for appointment of Sub
Inspector (trainees) in the 50% quota reserved for Sub Inspectors
for direct recruitment during the currency of the rank list itself and
PSC is bound to make advice them. Rule 14 of the PSC Rules states
as follows:
“14. The Commission shall advise
candidates for all the vacancies reported and
pending before them and the vacancies which
may be reported to them for the period during
which the ranked lists are kept alive in the order
of priority, if any, and in the order of merit
subject to the rules of reservation and rotation,
wherever they are applicable:
Provided that the advice of candidates by
the Commission from the ranked lists kept alive
under the fifth proviso to Rule 13, shall be
confined to the vacancies that actually arose
during the normal period of validity of the
ranked lists under Rule 13 and certified to be as
such by the appointing authorities reporting
vacancies to the Public Service Commission.”
The condition is that PSC can advice only to the vacancies reported
during the currency of the list. The learned single Judge found that
the number of vacancies available to be appointed by direct
W.A. Nos. 282, 302 & 403/2008 and
W.P.(C) No.29153/2007 8
recruitment is 695. Excluding the 49 anticipated vacancies reported
by the Government, balance actual vacancies reported was 245.
According to the counter affidavit filed by the Government,
considering the existing strength of direct recruitment of 245 is
added, there will be excess hands than the quota fixed for direct
recruitment. But, if we take into account the promotions effected in
pursuance of the notification dated 28.12.2007, there will be further
51 vacancies. Out of the 57 promotees, 51 Sub Inspectors of
General Executive Branch from open quota were promoted. But,
going by the actual promotion orders from which details of their
promotion post are also ascertained, it can be seen that 39
vacancies of Sub Inspectors (General Executive Branch) in the open
quota arose prior to 18.10.2007 during the validity of the list. In any
event, Government themselves reported 49 anticipated vacancies.
Taking into account the fact that the Sub Inspectors selected and
ranked after advice has to undergo six months’ training, only after
six months they can be absorbed. Therefore, the training should
commence six months prior to the date of arising of substantial
vacancy and that was the employer’s need. We have seen that
notification inviting applications was published in 2003. Ranked list
was published only in August, 2006 after three years. Written test,
W.A. Nos. 282, 302 & 403/2008 and
W.P.(C) No.29153/2007 9
practical test, eligibility test (physical fitness test) etc. took a long
time for finalisation of the list. Without sufficient number of Sub
Inspectors, the police department cannot function properly and,
therefore, PSC ought to have advised 49 candidates more in the 49
anticipated vacancies reported by the Government during the
currency of the list even without an interference from the court.
The notification was for selection of Sub Inspector (Trainees) and
those who are selected have to undergo training for six months.
Then only they will be appointed in the post of Sub Inspectors.
Therefore, actual vacancies of Sub Inspector (Trainees) will arise six
months prior to the actual promotion of Sub Inspector to the post of
Circle Inspector of Police in January, 2008. Thus, for appointment
of trainees to the post arose during the currency of the rank list and
we are of the pinion that PSC went wrong in not advising candidates
for the 49 anticipated vacancies reported by the Government. But,
we have seen that due to promotion, there are 39 vacancies of Sub
Inspectors (General Executive Branch) direct recruitment in the
open quota arose even before 21.8.2007 before the expiry of the
rank list (within the one year period). Therefore, PSC is bound to
advise at least 39 candidates from the reported vacancies during
the currency of the rank list under the open quota.
W.A. Nos. 282, 302 & 403/2008 and
W.P.(C) No.29153/2007 10
4. Apart from the above, we are of the view that first
proviso to rule 13 clearly provides that the rank list will continue to
be in force till training of the last batch of selected candidates start.
Last batch of selected candidates during the currency of the list was
sent for training only on 1.1.2008. Once the rank list is prepared,
there is no further selection. The function of the PSC thereafter is
only to advice the candidates from the select list according to the
vacancies reported subject to rules of reservation. Written test,
practical test, interview and all required for the selection took place
earlier. So, the last batch selected for the actual vacancies reported
during the currency of the list within one year were sent for training
only on 1.1.2008. So, the list will expire only on 1.2.2008. Since
actual promotions of 59 Sub Inspectors of Police were effected
before the expiry of the list by Government notification dated
28.12.2007 and out of the promotees, 39 vacancies are direct
recruits of General Executive branch allotted to the open candidates
(80% of the 50% categories), we are of the opinion that PSC ought
to have advised at least 39 candidates more from the list, if not 49,
as anticipated by the Government. Since the vacancies were
already reported before the expiry of the list and the vacancies
actually occurred before the expiry of the list and considering the
W.A. Nos. 282, 302 & 403/2008 and
W.P.(C) No.29153/2007 11
fact that they have to be given further training for six months, we
are of the opinion that PSC shall advice 39 candidates more on the
open quota from the ranked list subject to the rules of reservation
etc. as per law within one month from today.
All the writ appeals and the writ petition are disposed of
accordingly.
J.B.Koshy
Judge
K.P. Balachandran
Judge
vaa
W.A. Nos. 282, 302 & 403/2008 and
W.P.(C) No.29153/2007 12
J.B. KOSHY
AND
K.P.Balachandran,JJ.
————————————-
W.A. Nos.282, 302 and
403/2008 and
W.P.(C) No.29153/2007-U
————————————-
Judgment
Date:15th October,2008