IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33458 of 2006(G)
1. MANOJ.P.R., AGED 35 YEARS,
... Petitioner
2. SANJEEVAN.K.C., AGED 35 YEARS,
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR GENERAL OF POLICE,
3. KERALA PUBLIC SERVICE COMMISSION,
For Petitioner :SRI.P.V.MOHANAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :21/12/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NOS. 33458/06,
19359, 25067 & 25400 OF 2009
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Dated this the 21st day of December, 2009
J U D G M E N T
The main question arising for consideration in these writ
petitions is the exact date of expiry of the ranked list published by
the Kerala Public Service Commission for filling up the post of Sub
Inspector of Police (General Executive Branch) (Trainee) in the
Police Department.
2. The ranked list in question came into force on 19/8/06.
According to the writ petitioners, the list expired on 9/9/09 where
as Public Service Commission contends that the validity of the list
expired on 01/02/2008.
3. The Rule which is required to be noticed for resolving
the controversy is Rule 13 and its 1st proviso of the Kerala Public
Service Commission Rules of Procedure (hereinafter referred to as
the Rules for short), which reads as under:
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.
W.P.(C) NOS. 33458/06,
19359, 25067 & 25400 OF 2009
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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.
From the above, it is evident that the ranked list will expire on
the expiry of one month from the date of commencement of the
training in respect of the last batch advised from the list within a
period of one year from the date of finalisation of the ranked list.
It is interpreting this provision of the Rule, arguments were
addressed by both sides.
4. Before proceeding with the matter, I shall make a brief
reference to the facts to the extent it is relevant. The post of Sub
Inspector of Police (General Executive Branch) is to be filled up in
the ratio of 50:50 between the direct recruits and promotees.
Among the 50% earmarked for direct recruitment, 80% of the
vacancies are to be filled up from open market, 10% from
ministerial staff in the Police Department and 10% from
graduates among the police constables. After the ranked list was
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published on 19/8/06, writ petitions were filed before this Court
praying for directing the authorities to report the vacancies to the
PSC. Those writ petitions were disposed of by judgment dated
13/12/2007, a copy of which is Ext.P6 in WP(C) NO.33458/06,
directing PSC to advice 245 candidates.
5. Writ appeals were filed mainly contending that in
addition to candidates ordered to be advised, candidates should
be advised against 49 anticipated vacancies reported on 29/6/07.
Ext.P2 in WP(C) No.19359/09 is the common judgment in the writ
appeals. In that judgment rendered on 15/10/2008, the PSC was
directed to advise 39 open candidates out of the 49 vacancies
reported during the currency of the list. Para 4 of the judgment,
being relevant, is extracted below for reference.
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
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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 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 atleast 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 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.
(emphasis supplied)
It is stated that Special Leave Petitions filed against the judgment
were dismissed by the Apex Court.
6. Accordingly, PSC advised 39 open candidates on
7/4/2009. These candidates were sent for training on 10/8/2009.
Petitioners submit that the last batch advised, having commenced
training only on 10/8/2009, in view of the 1st proviso to Rule 13 of
the Rules, the list will expire only after one month from 10/8/09,
i.e. on 9/9/2009. According to the petitioner in WP(C)
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No.19359/09, 8 vacancies were available before the expiry of the
list on 9/9/2009 and therefore they filed this writ petition on
9/7/2009 for a direction to report the vacancies and to direct the
PSC to advise candidates against those vacancies. They have also
produced Ext.P3 to show that five out of the 39 candidates
advised on 7/4/2009 did not join duty. In this writ petition, this
Court passed an interim order on 21/8/2009 directing to report 9
vacancies with a further direction not to advise candidates
against those vacancies.
7. In so far as WP(C) No.25067/09 is concerned, petitioner
is also aspiring for appointment against the 80% vacancies
earmarked for open market candidates. Referring to Ext.P5, P7 to
P10 and P12, petitioner contends that there are 38 vacancies,
which arose prior to 9/9/09. It is stated that out of this 38
vacancies, four candidates have been advised pursuant to the
direction of the Division Bench in RP No.413/2009 and therefore
the balance 34 vacancies are available and should be filled up
from the ranked list. In this case also, an interim order was
passed on 28/08/2009 directing to report 14 vacancies. Similar is
the contention raised by the petitioner in WP(C) No.25400/09
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19359, 25067 & 25400 OF 2009
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also.
8. As already stated, this Court is concerned more about
the date of expiry of the ranked list and not about the exact
number of vacancies against which candidates should be advised.
This is for the reason that if the case of the petitioners is
accepted, it is for the PSC to advise candidates against vacancies
reported before 9/9/2009.
9. PSC on the other hand contends that the ranked list
was published on 19/8/06 and the normal period of one year
expired on 18/8/2007. It is stated that last batch within the one
year period was advised for training on 23/7/2007 and were sent
for training on 19/9/2007. It is contended that one month expired
on 18/10/2007 and therefore the list expired on that date.
Though this is the first contention of the PSC, in the alternative, it
is contended that this argument was not accepted by the Division
Bench while rendering Ext.P2 judgment referred to above. It is
stated that the Division Bench has found that the last batch
advised during the currency of the list within one year of its
finalisation, was sent for training on 1/1/2008 and that the list
expired on 01/02/2008. Therefore, PSC submits that at any rate,
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the list expired on 01/02/2008. It is stated that in Ext.P2
judgment, the Division Bench ordered to advise 39 candidates,
since those vacancies were reported before 01/02/2008. On this
basis, it is contended that list having expired on 01/02/2008,
there arise no question of advising any more candidates from the
list published on 19/8/06. PSC also relied on the judgments of this
court in A.Sreekantan Nair v. M.K.Muraleedharan Nair (1991
LAB.I.C. 2163) and Ravidas v. PSC [2009(2) KLT 295 (FB)]
contending that a list once published cannot be a perennial
source of advise and that once a list has expired, it cannot be
resurrected and given life.
10. As already seen, the proviso to Rule 13 makes it clear
that the list will expire after one month from the date of
commencement of training in respect of the last batch selected
from the list within a period of one year from the date of
finalisation of the ranked list. In this case, the ranked list in
question was finalised and published on 19/8/2006. The last batch
advised should be within one year from 19/8/2006 i.e., before
18/8/2007 and the ranked list will remain alive till the expiry of
the one month from the date of commencement of the training of
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the last batch so advised. Therefore, irrespective of whether the
PSC has committed illegality in not advising or delaying the
advise of 39 candidates requiring directions of the Division Bench
of this Court, the date of expiry of the list is a definite one, by
force of the proviso to Rule 13 of the Rules.
11. In the absence of any challenge to the Rule, this Court
need only consider what is the outer time limit of the list within
the four corners of Rule 13 of the Rules, which has been noticed
above. Even if, as in this case, candidates are advised later, that
will not give life to an expired list and this view is consistent with
the judgment in WP(C) No.14342/09 rendered by a learned Single
Judge of this court. It is in this context the findings of the Division
Bench in para 4 of Ext.P2 judgment assumes importance. A
reading of paragraph 4 of the judgment shows that it is positively
found that the last batch sent for training within one year from
the date of finalisation of the list was on 1/1/2008. On this basis,
it is further found that the list expired on 01/02/2008. If that be
the position, this Court is bound by this finding and the list cannot
have a life beyond 01/02/2008.
12. Learned Counsel for the petitioner contended that if
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the 39 candidates were advised by the PSC within the one year
period, they would have been eligible for advise to the remaining
vacancies. It is stated that since the candidates were not advised
for the fault of the PSC, the candidates should not be deprived of
their right to be advised to the existing vacancies. It may be true
that despite reporting of vacancies within the currency of the list,
PSC did not advise candidates. It may also be true that in such a
situation, a Division Bench of this Court had to intervene and
issue directions for advising candidates to the vacancies notified
during the currency of the list. However, fact remains that the
date of expiry of the list in question is statutorily prescribed and
is definite. If that be so, irrespective of the vagaries of the
situation, the list is bound to expire on that particular date and
the Division Bench of this court has found that date to be
01/02/2008. If that be so, this Court cannot go beyond that
finding in the judgment and consequently there arise no question
of advising any candidates beyond 01/02/2008. If this be the
position, the contention of the petitioners that the list expired only
on 9/9/2009 does not have any force. If so, there arise no
question of advising any candidates as sought for in the writ
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petition. For this reason, I also do not find any substance in the
contention that the Division Bench was not dealing with a
situation after 39 candidates are advised.
13. In so far as WP(C) No.33458/06 is concerned, this writ
petition is filed by Graduates in Police Constabulary falling in
feeder Category No.III. The prayers sought in this writ petition are
the following:
(i) To issue a writ of mandamus, order or direction
commanding the respondents to fill up 17 vacancies
of Sub Inspectors of Police (General Executive
Branch) (Trainee) from Category III of Ext.P4 list
before advise and appointing candidates from
Category I of Ext.P4 rank list.
(ii) To declare that the posts of Sub Inspectors of
Police (General Executive Branch) (Trainee) in Police
Department are to be filled up by advising the
candidates from Ext.P4 list by applying the ratio of
8:1:1 in the cadre strength set apart for selection and
appointment and to maintain the ratio continuously
and to fill up the posts due to the Category III
forthwith by maintaining the ratio.
(iii) To issue a writ of mandamus, order or direction
commanding the respondent to advise and appoint
approved candidates from Category III of Ext.P4
against unfilled vacancies set apart for ministerial
staff (Category II) by applying the ratio 8:1:1 to the
cadre strength forthwith.
14. In so far as prayer Nos. 1 and 3 are concerned, the
question of reporting the vacancies at this distance of time does
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not arise since the list has already expired. Apart from that, even
if any vacancy is available to advice candidates, in view of the
findings in Ext.P2 judgment of the Division Bench, such vacancies
should go to 80% quota earmarked for open market candidates
only. In the absence of any reporting of vacancies or advising
candidates, the question of considering prayer No.2 also does not
arise.
Therefore these writ petitions are only to be dismissed and I
do so.
ANTONY DOMINIC, JUDGE
Rp