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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Alexander Thomas, Viju Abraham, JJ.
Sheeja P.S. – Petitioner
Versus
Kerala Public Service Commission, Represented By Its Secretary and Ors. – Respondents
OP(KAT) NO. 97 OF 2022
Decided On : 05-04-2022
Constitution of India Articles 226 & 227- Article 320 - Kerala State & Subordinate Service Rules, 1958- Rule 7(b)- Kerala Public Service Commission Rules of Procedure- Rule 18(ii) - Re-advise given by the PSC to the contesting respondent – Challenged - a candidate, who is appointed in pursuance of PSC advise memo, who is later thrown out, will have the right to be re-appointed as against vacancies mentioned in Rule 7(b) of the KS & SSR Part II.
Finding of the Court:
if the vacancy concerned, be it fresh or NJD, is reported to the PSC by the appointing authority, after the expiry of ranked list, then there is no question of advising any candidate as against such vacancy, from the time of expiry of the ranked list, in view of the provision contained in Rule 14 of the PSC Rules of Procedure- PSC will get jurisdiction to advise a candidate included in the ranked list, only as against vacancies reported during the currency of the ranked list. In other words, if the vacancy requisition report is received by the PSC after the expiry of the ranked list, then the PSC does not have any jurisdiction to advise any candidate from any such time expired ranked list.
Result : Dismissed
JUDGMENT :
ALEXANDER THOMAS, J.
The final verdict of the Tribunal rendered on 18.2.2022 dismissing O.A. No.385/2021, is under challenge in the present Original Petition (KAT) filed under Articles 226 & 227 of the Constitution of India. The sole petitioner in the O.P. is the sole applicant in the O.A. and the respondents in the O.P. are the respondents in the O.A.
2. Heard Sri.R.Renjith, learned counsel appearing for the petitioner in the O.P./applicant in the O.A. and Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission appearing for R-1 to R-3. In the nature of the order proposed to be passed by this Court in this O.P., notice to contesting respondent No.4 will stand dispensed with.
3. The prayers in the instant Ext.P-1 Original Application O.A.No. 385/2021 filed before the Kerala Administrative Tribunal, Thiruvananthapuram Bench, are as follows:
b) Direct the respondents 1 and 2 to appoint the applicant as LD Typist against the NJD vacancy which was advised by the commission on 19-8-2019.
c) Declare that the appointment of the 4th respondent against the NJD vacancy as stated above is null and void.
d) Issue such other reliefs as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.”
4. The Tribunal, after hearing both sides, has rendered the abovesaid Ext.P-7 final order on 18.2.2022, dismissing O.A.No. 385/2021, with the finding that the objections raised by the applicant, against the action of the Kerala Public Service Commission (PSC) in not advising her to the Non Joining Duty (NJD) vacancy, which was reported on 1.10.2019, cannot be interfered with, as the requisition of said NJD vacancy has been received by the PSC after the expiry of the ranked list on 30.8.2019. Further, the Tribunal has also held that the objections raised by the applicant, against the re-advise given by the PSC to the contesting respondent No.4 is not tenable, inasmuch as the action of the PSC in re-advising such a candidate, who is a thrown out candidate, is not amenable for any interference. It is the abovesaid verdict of the Tribunal at Ext.P-7, that is under challenge in the instant Original Petition.
5. The applicant has been included in the ranked list for Lower Division Typist [LD Typist] in Category No.388/2014, duly finalized by the PSC on 31.8.2016. The applicant was placed at Rank No.139. The 4th respondent herein was placed at Rank No.48. The ranked list had expired on 30.8.2019, after running its maximum life of 3 years, in terms of Rule 13 of the Kerala Public Service Commission Rules of Procedure [hereinafter referred to as 'The PSC Rules of Procedure'].
6. It appears that R-4 herein, who was having Rank No.48 in the above ranked list, was duly advised and appointed by the PSC, as against a vacancy reported earlier. Later, she was thrown out from the said service, presumably on account of lack of vacancy. She had duly re-registered with the PSC for re-advise of candidate, in terms of Rule 7(b) of Part II of the Kerala State & Subordinate Service Rules, 1958 ['KS & SSR Part II' for short] and the provisions contained in the Kerala Public Service Commission Office Manual.
7. From the pleadings contained in Ext.P-2 reply statement filed by the PSC in the instant O.A. before the Tribunal, more particularly para 4 thereof, it is evident that subsequently, for the period from 2.7.2019 to 6.8.2019, 6 vacancies [5 fresh vacancies + 1 NJD vacancy] were duly reported by the appointing authority concerned to the PSC, in respect of the abovesaid post in question [1 vacancy each on each dates from various departments]. The PSC has stated that 6 candidates available in the abovesaid ranked list were duly advised for appointment, as against those 6 vacancies which were reported from 6 different departments. Among the 6 candidates so
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