IMPORTANT POINT
Power available under 5th Proviso of Rule 13 of the Kerala Public Service Commission Rules of Procedure could be exercised only in the case of a ranked list which is still subsisting or the life of which is still continuing.

JUDGMENT

P.K. BALASUBRAMANYAN, J.—

1.Leave granted.

2.Heard counsel on both sides.

3.The appellants in this appeal were included in a ranked list for appointment to the post of Overseer Grade-II in the Public Works and Irrigation Departments. The ranked list was published on 31.3.2001. Its normal validity was one year. But if no new list was prepared, its validity extended to three years. No new list was prepared. Therefore, the list was operative till 31.3.2004.

4.In the list prepared, diploma holders were not included on the ground that they possessed a qualification higher than the one required. The diploma holders filed writ petitions in the High Court seeking the issue of a writ of mandamus directing the Kerala Public Service Commission to include them in the ranked list. On 18.2.2003, the High Court allowed the writ petitions and directed that the ranked list be recast including the diploma holders also. This caused some delay in the operation of the list prepared on 31.3.2001.

5.Even prior thereto, the Government of Kerala had issued an order banning new appointments in view of the circumstances prevailing in the services in the State. This ban on new appointments was in force from May 2002 to November 2003, for a period of 18 months. The result was that on the reporting of vacancies, only 633 names were advised for appointment.

6.Under Rule 13 of the Kerala Public Service Commission Rules of Procedure, the Public Service Commission, under the 5th Proviso thereto, had the power to keep alive the ranked list, which was normally due to expire during the period when there was a ban on appointments, for a period of 30 days from the date of cessation of the ban. On 4.9.2002, the 5th Proviso to Rule13 of the Rules was amended. The substituted 5th proviso to Rule 13 of the Rules read as follows :

“Provided further that if the commission is satisfied of the existence of period of general ban declared by the Government on the reporting of vacancies to the Public Service Commission or of any other circumstances or of any extraordinary situation in which the reporting of vacancies by the appointing authorities is prevented or restricted or delayed, the Commission shall have the power to keep alive the Ranked Lists which are normally due to expire during the said period to such periods as may be decided by the Commission subject to a minimum period of three months or for such further periods but not exceeding one year in the aggregate. If the Commission so decides it shall issue a notification keeping alive the Ranked Lists in the above manner and shall advise candidates from such Ranked Lists to the vacancies reported during such extended period of validity of the Ranked Lists.”

7.On 19.11.2003, the Government of Kerala recommended to the Public Service Commission to extend the validity of lists upto the end of Year 2004 in view of the ban that was in operation. The Public Service Commission did not exercise its power under the 5th proviso to Rule 13 of the Rules to extend the validity of the list. The Government therefore again wrote on 21.2.2004 asking the Public Service Commission to keep alive the ranked lists until the end of December 2004. Pursuant to this request, the Kerala Public Service Commission met on 2.4.2004 and extended the lists that were current and that were to expire thereafter till 30.12.2004. The ranked list in respect of the 2nd Grade Overseer with which we are concerned, was not kept alive on the basis that the list had expired on 31.3.2004 and on 2.4.2004, the Public Service Commission could not exercise its power to keep alive a list which had already expired. Thus, though the extension benefited some of the other ranked lists, the ranked list in question was treated as having expired by 31.3.2004.

8.In that context, the appellant approached the High Court with a writ petition. The learned single judge following an earlier decision of a Division Bench in W.A. No. 1053 of 2004, took the view that the deci