Judgment :-

S.B. Sinha, J.

1. Leave granted.

2. Appellants herein are before us aggrieved by and dissatisfied with a judgment and order dated 5.10.2005 passed by a Division Bench of the High Court of Kerala at Ernakulam in Writ Appeal No. 53 of 2005 (A) and others whereby and whereunder the Writ Appeals preferred by the State of Kerala from a judgment and order dated 25.8.2004 passed by a learned single judge of the said Court in O.P. No. 28082 of 2002 and others were allowed.

3. Appellants herein pursuant to or in furtherance of a requisition made by the State of Kerala before the Kerala Public Service Commission (for short, "the Commission") applied for the post of Lower Primary/Upper Primary School Assistants. On 5.6.1997, the Commission prepared a rank list, which was in force from 5.6.1997 to 5.6.2000. Appellants name figured therein. The vacancies, however, were not filled up. However, as no vacancy was filled up by the Deputy Director of Education, writ petitions were filed before the Kerala High Court praying for issuance of a writ of mandamus or any other writ or order directing the Deputy Director of Education to report all the vacancies to the Commission so as to enable it to advise the respective candidates pursuant whereto and in furtherance whereof the appointing authority may issue offers of appointment. It is stated that the appellants were parties therein.

4. On or about 3.6.2000, pursuant to the direction of the High Court, dated 22.5.2000, the Deputy Director of Education reported 125 vacancies and on or about 5.6.2000, he reported further 50 vacancies just before the expiry of the rank list with a note that they were anticipated vacancies. However, as the vacancies were shown as anticipated vacancies, the Commission could not issue letter of advise against those 175 vacancies reported by the Deputy Director of Education.

5. On or about 24.10.2001, the said writ petitions were heard and disposed of by the Division Bench of the High Court, holding:

."We are of the view since there is controversy between the parties with regard to the number of vacancies it would be appropriate that a direction be given to first respondent to take a decision on the dispute raised in this proceeding."

6. In compliance of the said judgment, the State of Kerala issued a Government Order dated 15.1.2002 reporting that there was no vacancy.

7. Another writ petition marked as O.P. No. 28082 of 2002 was filed by a few candidates praying for quashing of the said Government Order dated 15.1.2002 upon grant of a declaration that 175 vacancies reported by the Deputy Director of Education should be filled from amongst the candidates whose names find place in the select list and for consequential directions.

8. By reason of a judgment and order dated 25.8.2004, the High Court held:

"26. At this stage, I consider it necessary to advert to the contention of the standing counsel of the Commission that after the expiry of Ext. P1 rank list a new list has come into operation and therefore candidates included in Ext. P1 rank list cannot be advised for appointment. I cannot agree to the above argument of the learned counsel. 175 vacancies were reported to the Commission before the expiry of Ext. P1 rank list. Since those vacancies were wrongly described as anticipated vacancies the Commission did not advise candidates against those vacancies. Thereupon, aggrieved candidates approached this Court. A Division Bench of this Court directed the 1st respondent to report the vacancies correctly. The 1st respondent, however, issued Ext. P3 order without taking into account all relevant aspect. As I have found that 175 vacancies already reported were not anticipated vacancies but vacancies which had, in fact, occurred prior to the expiry of Ext. P1, candidates included in Ext. P1 are entitled to be advised for appointment against those vacancies. The legitimate claim of the petitioners cannot be denied for the reason that during the pendency of the writ pe