IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22828 of 2009(W)
1. NASEEMA.K.K., AGED 35,
... Petitioner
2. ISHA K.I., AGED 39, W/O.NAZAR,
3. SOUJA.P.K., AGED 36,
4. RANJINI RAJASEKHARAN, AGED 29,
5. MOLLY.P.S., AGED 41,
6. NABEESA.K.S., AGED 39,
7. KHADEEJA.K.S., AGED 40,
8. RESMIPRABHA P., AGED 31,
9. REJITHA.P.N., AGED 26,
10. GEETHALAKSHMI T.R., AGED 32,
11. SREEJA.N., AGED 31,
12. SATHIMOL.B., AGED 36,
Vs
1. THE KERALA PUBLIC SERVICE COMMISSION
... Respondent
2. THE SECRETARY, KERALA PUBLIC
3. THE DISTRICT OFFICER,
For Petitioner :SRI.T.RAMPRASAD UNNI
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :28/10/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.22828 of 2009-W
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Dated this the 28th day of October, 2010.
JUDGMENT
The challenge is against the reply given by the Public Service
Commission as per Ext.P5, whereby the request of the petitioners to enlarge
the ranked list, has been rejected.
2. The circumstances leading to the dispute are the following: The
petitioners were applicants for the post of Lower Division Typists in various
departments in Idukki District. The written test was conducted on
12.8.2006 and a short list was published on 11.1.2007. According to the
petitioners, the Public Service Commission had fixed a cut of mark of 58
for the written examination and a short list was published. Ext.P1 is the
copy of the ranked list published by the Public Service Commission
wherein the main list contained only 37 candidates. The petitioners were
included in the supplementary list. It is pointed out that the main list was
hardly sufficient for the requirements of the posts notified and even at the
time of publication of the rank list, there were 85 vacancies. Some of the
candidates including petitioners therefore approached this Court by filing
W.P.(C) No.33228/2008 seeking for a direction to include sufficient number
wpc 22828/2009 2
of candidates in the main list. By Ext.P3 judgment this Court directed the
matter to be examined by the Commission itself, in the light of the decision
of the Full Bench in Ravidas v. Public Service Commission (2009 (2)
KLT 295 (FB)) Ext.P4 is the further representation submitted in the matter
and Ext.P5 is the reply given.
3. Heard learned Senior Counsel for the petitioners Shri K.
Ramakumar and Shri Alexander Thomas, learned Standing Counsel
appearing for the Public Service Commission.
4. The petitioners mainly contend, by relying upon a decision of this
Court in Ajayan v. State of Kerala (2006 (3) KLT 854) that the
Commission was bound to include sufficient number of candidates in the
main list. It is pointed out that at least three times the number of vacancies
could have been taken as a pointer in publishing the main list. Reliance is
also placed on the Full Bench decision of this Court in Ravidas’s case
(2009 (2) KLT 295 (FB)). It is pointed out that the list was got exhausted as
sufficient number of candidates were not included.
5. Learned Standing Counsel for the Commission submitted that the
decision in Ajayan’s case (2006 (3) KLT 854) stands modified by the
dictum laid down by the Full Bench. It is pointed out that the said decision
wpc 22828/2009 3
has not indicated that the Commission should include a minimum number of
candidates in the list. It is further pointed out that the principles stated in
Ajayan’s case (supra) that at least three to five times of the number of
vacancies reported, should be taken as a criteria, need not be followed in all
cases. Reliance is also placed on the decision of the Apex Court in State of
U.P. v. Rafiquddin and others (1987 (Supp) SCC 401) to contend that if
there is a subsequent notification issued by the Commission, the ranked list
need not be kept alive.
6. By relying upon the counter affidavit filed by the Commission
itself, learned Senior Counsel appearing for the petitioners submitted that
actually 55 vacancies existed initially, but due to a mistake occurred in the
District Office of the Public Service Commission, the vacancies were
assessed as 17 only and that alone has contributed to the publication of the
main list with only 37 candidates. Hence, the same is liable to be rectified.
7. The averments in the counter affidavit filed on behalf of the
Commission show the following: At the time of publication of the probable
list for selection of L.D. Typists, only 17 vacancies were found to be
available with the Commission and the Commission prepared the probable
list by including 61 candidates the main list, i.e. more than three times the
wpc 22828/2009 4
number of vacancies available at that time with necessary supplementary
lists. The lowest mark of the candidates included in the main list of the
probable list is 58.
8. The ranked list for the post of L.D. Typists (various) in Idukki
District was published on 5.12.2007 by including 37 candidates in the Main
List, 65 in the supplementary list and 11 under List II (By transfer category).
Later one candidate each was included in the Main list and supplementary
Ezhava list by issuing addendum notification dated 1.4.2008 and 10.6.2009
respectively. Thus, the ranked list consisted of 38 candidates in the Main
list, 66 in the Supplementary lists and 11 in List II. A total number of 113
candidates who were included in the Probable list and subsequently found
to be not qualified were excluded from the ranked list. The total number of
vacancies reported up to the date of finalisation of the ranked list were 86
and the number of advices made from the ranked list were 51. The date of
exhaustion of the ranked list is 25.1.2008. The number of pending
unadvised vacancies as on the date of exhaustion was 43. There are 76
vacancies reported upto 31.10.2009. Fresh notification for the post was
published in the Kerala Gazette on 29.5.2009 and examination is not fixed
by the Commission in response to the said notification. It is further averred
in page 3 of the counter affidavit that on the basis of the reply affidavit filed
wpc 22828/2009 5
by the petitioner in W.P.(C) No.6001/2007 that availability of 17 vacancies
only is wrong, the report of the District Officer, Idukki had been called for,
the reply to which was that 55 vacancies were pending as on 18.9.2006, the
date on which the proforma for selection was sent to the Commission for
deciding the number of candidates to be included in the ranked list. But
due to an inadvertent mistake on the part of the District Officer, the
number of vacancies happened to be noted as 17. Therefore, the
Commission explains that the orders of the Commission to include 61
candidates in the main list and necessary supplementary lists was on the
basis of the report of the District Officer, Idukki to the effect that there
existed only 17 vacancies for the post. The fact that at the time of sending
the proforma for selection on 18.9.2006 there existed 55 vacancies instead
of 17 came to the notice of the Commission only when the District Officer
intimated the fact in response to the report called for on the affidavit filed
by the petitioner in W.P.(C) No.6001/2007. Finally, it is pointed out that
any decision to enlarge the exhausted rank list will prejudicially affect the
rights of those who applied in response to the fresh notification.
9. Thus, the following facts are evident. The decision by the
Commission to include 61 candidates in the main list was really prompted
by the fact that only 17 vacancies were assessed as available at the time of
wpc 22828/2009 6
preparation of the probable list. Actually this was a mistake. 55 vacancies
were pending as on 18.9.2006.
10. Learned Senior Counsel for the petitioners therefore contended
that since there was a mistake on the part of the Commission itself, the
candidates cannot be denied the benefit, i.e. consideration of their
candidature in respect of the vacancies as reported. It is therefore submitted
that the list has to be enlarged.
11. In Ajayan’s case (2006 (3) KLT 854) the Division Bench in
para 9 considered various aspects. Therein, it was held that the Commission
did not consider the fact that three to five times of the number of vacancies
which may occur during the currency of the list has to be included in the
ranked list. Accordingly, the Division Bench directed the Public Service
Commission to consider anticipated vacancies also and then refix the
number of persons to be called for interview. The Division Bench further
directed the Commission to assess the vacancies that may arise during the
currency of the list in a reasonable manner and shortlist the candidates at
least three times the number of vacancies in the order of merit without
fixing cut off marks and complete the formalities and publish an additional
list within two months time.
12. The Full Bench in Ravidas’s case (2009 (2) KLT 295) approved
wpc 22828/2009 7
the decision in Ajayan’s case (2006 (3) KLT 854) to hold that the
Commission cannot prescribe cut off marks to shortlist the candidates to be
called for the interview in the absence of such a provision in the rules or in
the notification. In para 38, the Full Bench examined the guidelines for
preparation of the shortlist and ranked list in Circular No.17/1987 dated
4.7.1987 which was modified by Circular No.30/2003 dated 1.12.2003
Para 1 of Circular dated 1.12.2003 is relevant here, which is extracted
below:
“1. The number of candidates to be included in the Short Lists and
Ranked Lists should not be decided mechanically. Commission will
decide the number to be included in each case considering the
number of vacancies reported, number of candidates advised from the
previous list, nature of the post and chances of occurrence of
vacancies. The number of candidates to be included in the
supplementary list of reservation group of communities will also be
decided by the Commission in each case considering where the
rotation stands and the number of turns such as NJD/NCA/TPO etc.
to be satisfied, of course bearing in mind that reservation
communities should not lose their turn due to the paucity of
candidates.”
Going by the same, the Commission will decide the number of candidates to
be included in each case “considering the number of vacancies reported,
wpc 22828/2009 8
number of candidates advised from the previous list, nature of the post and
chances of occurrence of vacancies.” Therefore, the Commission will have
to include the number of candidates in the main list of the short list by
considering the number of vacancies reported among other matters. In
para 42, the Full Bench then considered the question whether all the
vacancies arising over a period of 3 years should be considered for fixing
the number and it was held that “the Commission decides on the number of
candidates to be included in the ranked list based on the vacancies actually
reported to them and where the vacancies do not exist and are not reported,
based on vacancies anticipated to arise.” After applying the above
principle, in para 49 the Full Bench found that in respect of various lists,
the Commission had included sufficient number of candidates in the main
list and supplementary lists. My attention was invited by the learned
Standing Counsel for the Commission to para 49 of the decision of the Full
Bench to submit that the method adopted by the Commission in those
cases, was approved by the Full Bench.
13. True that the Full Bench in Ravidas’s case (supra) had analysed
the number of candidates to be included in various lists, while considering
the merits of those cases. But one of the aspects considered by the Full
Bench evidently was that even in Circular No.30/2003 dated 1.12.2003 as
wpc 22828/2009 9
per para 1 the Commission will have to decide the number to be included in
each case considering the number of vacancies reported, number of
candidates advised from the previous list, nature of the post and chances of
occurrence of vacancies. Of course, the Full Bench was of the view that in
the light of the decision of the Apex Court in Ashok Kumar Yadav and
others v. State of Haryana and others {(1985) 4 SCC 417}, generally
speaking, the shortlist has to be prepared as per the method provided in the
Circular of the year 2003, and the short listing is not really by prescribing a
cut off mark as such. It depends upon the material available in each case
and it need not be a minimum of 3 to 5 times of the number of vacancies
reported, in all situations.
14. But, it will be a safe method to fix the number based on the
number of vacancies reported, going by Circular No.30/2003. By applying
the said principle to the facts of this case and going by the facts admitted in
the counter affidavit filed by the Commission, it will be clear that the
method adopted by the Commission was wrong. 61 candidates were sought
to be included in the main list by taking the vacancies as 17, i.e. more than
three times the number of vacancies available. But it was a mistake as
actually 55 vacancies were pending as on 18.9.2006. Therefore, three times
wpc 22828/2009 10
the number of vacancies reported was not obviously taken and only 37
candidates were included in the main list of the ranked list which resulted
in the main list getting exhausted. The ranked list thus got exhausted on
25.9.2008 and the number of pending unadvised vacancies as on the date of
exhaustion was 43.
15. It is true that the Commission has published a fresh notification
even though no test has been conducted already and it is averred that the
mode is yet to be fixed for selection. Even though learned Standing
Counsel for the Commission submitted that any decision to enlarge the
exhausted rank list will affect the candidates who have applied pursuant to
the present notification and heavy reliance was placed on the decision of the
Apex Court in Rafiquddin’s case (1987 (Supp) 4 SCC 401), this is a case
where there was actually a mistake on the part of the District Officer, Idukki
in limiting the vacancies to 17 whereas the number of vacancies reported
was actually 55. The principles stated in Rafiquddin’s case (1987 (Supp) 4
SCC 401), in para 16 shows that the Apex Court in that case, was of the
view that “the list prepared by the Commission on the basis of the
competitive examination of a particular year could be utilised by the
government for making appointment to the service before the declaration of
wpc 22828/2009 11
the result of the subsequent examination.” It was also held that “if selected
candidates are available for appointment on the basis of the competitive
examinations of subsequent years, it would be unreasonable and unjust to
revise the list of earlier examination by changing norms to fill up the
vacancies as that would adversely affect the right of those selected at the
subsequent examination in matters relating to their seniority under Rule 22.”
16. The facts of the case show that the Apex Court was considering a
case where examinations were conducted in 1970 and 1972. Based on the
same, initially the Commission submitted a list of approved candidates to
the Government on October 25, 1971 recommending the names of 46
candidates which was the first list of 1970 examination. This was followed
by a second list. But long after that, a third list of unplaced candidates
from 1970 examination was prepared, after the candidates of the 1972
examination were appointed to the service. They claimed seniority over the
persons recruited to service in pursuance of 1972 examination. It is in that
context, in para 16 the above observations were made by the Apex Court. It
was found that there is no express provision in the rules as to what period
the list prepared under Rule 19(1) can be utilised for making appointment to
the service. Herein, there are specific rules with regard to the validity of the
list. Here, the list will be valid for a period of three years, going by Rule 13
wpc 22828/2009 12
of the rules, viz. the Kerala Public Service Commission Rules of Procedure.
Therefore, the observations of the Apex Court above are clearly
distinguishable.
17. The learned Standing Counsel then submitted that a candidate has
no indefeasible right to get appointment. True, but a candidate has got a
right to be considered for appointment, which cannot be denied by any
action which is arbitrary. Herein, Ext.P3 judgment is dated 25.3.2009,
whereby the Public Service Commission was directed to consider the
objections raised by the petitioners. The present notification is only issued
much later, i.e. on 29.5.2009. It cannot defeat the right of candidates like
petitioners, as no other ranked list is there.
18. Therefore, evidently the mistake made by the District Officer had
contributed to the limiting of the number of candidates in the main list as
37. Actually going by the vacancies reported, 55 vacancies were available
as noted already. In that view of the matter, the method adopted by the
Commission is really faulty and therefore the benefit should go to the
candidates like the petitioners. Power available to correct mistakes by a
public authority is well recognised. In V.V. Prakasini v. Kerala Public
Service Commission & others (1993 (1) KLJ 632) it was held that public
wpc 22828/2009 13
authority has power to correct apparent mistakes even without a specific
provision. It was held that “such a reserve power to correct mistakes
committed by itself has to be located in every public authority in the
interest of justice and to avoid arbitrariness.” This is so when rights of third
parties are involved. Here, the mistake led to the taking of an action on a
wrong basis which has evidently to be substituted.
19. Even if the list got exhausted, that will not prevent enlargement
of the list, as the three year period is not over so far. The three year period
will be over only by 4.12.2010. None of these aspects have been considered
while giving a reply as per Ext.P5. In Ext.P5, the only reason stated is that
a probable list was published by including four times of the number of
candidates and many of the candidates were not having the qualification.
Since the Commission is bound by its own circular and as the mistake of the
District Officer alone has contributed to the situation which resulted in only
37 candidates being included in the main list, Ext.P5 cannot be supported.
20. Therefore, Ext.P5 is quashed. There will be a direction to the
Public Service Commission to enlarge the list by including sufficient
number of candidates in the main list in the light of the vacancies reported
and accordingly an additional list will be published within a period of three
weeks from today, and candidates will be advised for the vacancies
wpc 22828/2009 14
reported accordingly. The same shall be done before 4.12.2010. It is made
clear that the petitioners and similarly placed persons, even if are
shortlisted and advised, will not be entitled to get any seniority over the
persons who were already listed and appointed.
The writ petition is allowed as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/