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Kerala Public Service Commission vs Shanil Kumar on 18 December, 2001

Kerala High Court
Kerala Public Service Commission vs Shanil Kumar on 18 December, 2001
Author: K Radhakrishnan
Bench: K Radhakrishnan, K B Nair


JUDGMENT

K.S. Radhakrishnan, J.

1. The question that has come up for consideration in these cases is whether public
Service Commission is obliged to advice candidates for non-joining duty vacancies
even after the expiry of the rank list.

2. Learned single Judge took the view that since vacancies were reported during
the currency of the rank list, those vacancies still remain and not extinguished and
therefore Public Service Commission could advise candidates for appointment even
after the expiry of the rank list. Counsel appearing for the Public Service Commission
took exception to the said reasoning placing reliance on several decisions of Division
Bench of this Court particularly the decision in Vimalakumar v. Public Service
Commission (1994 (2( KLT 97), Babu v. State (1996 (1) KLT 349), Balakrishnan v.
Public Service Commission 1994 (1) KLT 490 and Benoy v. P.S.C. 1997 (2) KLT 492 etc.

3. Counsel for the contesting respondents placed reliance on the decision of a
Division Bench of this Court in Narayanan v. State of Kerala (1981 KLT 321) and
Indian Bank v. Jayasree (1998 (2) KLT 464) and also Mariyakutty v. Municipal
Commissioner (1975 SLR 188) and contended that since vacancies never extinguished
due to non-joining, the vacancies remain and hence Public Service Commission should
advice candidates to unfilled vacancies.

4. Kerala Public Service Commission has formulated the Rules of Procedure in
exercise of the powers under Article 320 of the Constitution of India. Though these
Rules are not statutory rules, they are being followed by the Public Service Commission
in respect of preparation of rank list and issuance of advice memos. Rule 14 of the
Rules is relevant to be noted for the purpose of this case which reads as follows:

“14. The Commission shall advice 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 aforementioned provisions would show that Commission shall advise
candidates for all vacancies for the period during which the rank lists are kept alive in
the order of priority. During the currency of the rank list Commission shall advice
candidates for all vacancies reported and pending before them and vacancies which
may be reported to them for the period during which rank list was kept alive. The
above mentioned rule does not empower the Public Service Commission to advise any
candidate after the expiry of the rank list if requisition is not received before the expiry
of the rank list. If there is non-joining duty vacancy occurred during the currency of
the rank list, unless and until the same is reported, it cannot be said that the said
vacancy is pending before the Public Service Commission during the currency of the rank list.

5. Public Service Commission is unaware whether a person has joined duty or
not. This is a matter entirely within the knowledge of the appointing authority.
Appointing authority has to intimate the Public Service Commission with regard to the
non-joining duty vacancy during the currency of the rank list. Contention was raised
that when a vacancy is reported followed by the advice of the Public Service
Commission and if the candidate is not joining duty that vacancy is still open and not
extinguished and therefore Public Service Commission is bound to advice candidates
even after the expiry of the rank list.

6. We are afraid the above contention cannot be accepted. We are of the view
even if vacancies are still available, unless and until those non-joining duty vacancies
are reported during the currency of the rank list, as far as Public Service Commission
is concerned vacancy is extinguished because that vacancy is not pending before the
Public Service Commission. Unless and until it is so reported, Public Service Commission
would not be a position to know whether a person advised by it has joined duty or not.

7. Counsel for the respondents placed reliance on the decision in Indian Bank v.
Jayasree (1988 (2) KLT 464). We are of the view that the said decision is not
applicable to the facts of this case. In that case the Bench was dealing with appointment
in public sector banks and held that non-joining duty vacancy is a fresh vacancy. We
are in this case governed by separate rules of procedure. We have already held even
if it is not a fresh vacancy unless and until vacancy is reported to the Public Service
Commission, Public Service Commission is not obliged under Rule 14 to advise candidates
because vacancy cannot be said to the pending before it. In view of the aforementioned
legal position we are inclined to allow the appeals filed by the Public Service
Commission. Judgment of the learned single Judge is accordingly set aside. O.P. NO.
3785 of 2001 will stand dismissed.

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