IMPORTANT POINTS:
The vacancies in question need not be filled up it would not be proper for this Court to thrust upon the unwilling employer (appointing authority) candidates included in a ranked list for it is settled law that mere inclusion in a ranked list does not give to the candidates in question a vested right to appointment

ORDER :

1. This matter has been placed before the Full Bench upon reference by a Division Bench of this Court through an order dated 20.08.2018 in W.A. Nos. 1191 and 1740 of 2016 arising from the judgment dated 31.07.2015 in W.P. (C) No. 5881 of 2014. The facts may be briefly noticed. The writ petitioner was included in a ranked list for the post of Clerk-cum-Cashier in various District Co-operative Banks. She was included in Part I of the list as Rank No. 57 (the list was prepared in 2 parts since the selection was from 2 different sources). The candidates up to Rank No. 56 in Part I of the list were advised for appointment by the Kerala Public Service Commission taking into consideration the vacancies reported by various District Co-operative Banks. It appears that the person at Rank No. 54 did not join duty as a result of which there was a Non-Joining Duty (NJD) vacancy in the Ernakulam District Co-operative Bank (the ‘Bank’). Thereupon the writ petitioner filed W.P. (C) No. 5881/2014 in which an interim order was issued on 29.5.2014 directing the Bank to report the Non-Joining Duty vacancy before 30.06.2014, on which date, it is not disputed, the ranked list expired. There is considerable controversy at the bar as to whether the Bank had complied with the interim direction. While the Bank would take the stand that the order had been complied with, by informing the Commission that a candidate at Rank No. 54 of the list had not joined duty, the Public Service Commission would take the stand that there was no reporting of the NJD vacancy in the prescribed proforma which was mandatory in terms of a Government Order namely, G.O. (P) No. 38/1992/P&ARD dated 18.9.1992.

2. The Writ Petition was finally disposed of by judgment dated 31.7.2015, by which date the ranked list had already expired. As can be seen from the judgment of the learned single Judge, the Bank took up a contention that it could not fill up the vacancy in question on account of the changes in staff pattern as a consequence of the downgrading of the bank by the regulatory authorities under the Kerala Co-operative Societies Act. The learned Single Judge, on a consideration of the matter, found, on facts, that no direction could be issued to appoint a person in a particular vacancy if, the employer had for bona fide reasons (as in this case) decided that the vacancy should not be or cannot be filled up. The learned Single Judge noticed that the Bank did not intend to take any stand regarding the inability to appoint the Writ Petitioner on the ground that the list had expired. It was found that since the candidate at Rank No. 54 had not joined, a direction could be issued to appoint the writ petitioner to the next arising vacancy. This was to be done, if the position of the Bank improves with time, by treating the writ petitioner to be in the ranked list that may be prepared subsequently by the Kerala Public Service Commission. The Kerala Public Service Commission, therefore, filed W.A. No. 1191/2016 while the Bank filed W.A. No. 1740/2016 challenging the judgment of the learned single Judge.

3. The reference is on account of the fact that the Division Bench was of the opinion that the judgment of a Division Bench of this Court in Public Service Commission vs. Govindan, 2000 (1) KLT 33 to the extent it holds that this Court cannot issue orders directing the Public Service Commission to advise candidates from an expired ranked list, even if an interim direction had been issued earlier to report certain specific vacancies was, possibly, a departure from the view taken by a Full Bench of this Court in State of Kerala vs. Sreekandan, 1993 (1) KLT 107. The reference order also notices that that the petition seeking the review of the judgment in Sreekandan (supra) was dismissed (vide the judgment reported as Vimalakumari vs. State, 1994 (2) KLT 47 (FB). We must notice straight away that nothing turns on the rejection of the Review Petition on account of the fact that the revi