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2024 Supreme(Online)(KER) 18940
HIGH COURT OF KERALA
BASANT BALAJI, J
SAPTHA STALIN – Appellant
Versus
KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LTD. – Respondent
WP(C) 17663/2022
Non-cadre posts cannot be filled from rank lists, and vacancies must be reported according to relevant statutes without creating rights for non-cadre positions.
Headnote:
Fraud - Employment - Public Service Commission (Additional Functions) Act, 1970, Section 3; Kerala Public Service Commission (Consultation by Corporations and Companies) Rules, 1971, Rule 2A - The court examined the non-reporting of vacancies and fraudulent backdoor appointments by the Corporation, interpreting relevant provisions to conclude that vacancies in non-cadre posts do not impose an obligation to appoint from the rank list.
Fact of the Case:
Petitioners applied for Lower Division Clerk posts but were not appointed despite being on the rank list. They discovered irregularities in the reporting of vacancies and claimed violations of statutory provisions regarding appointments.
Finding of the Court:
The court found that while there were disputes over vacancy reporting, the posts in question were non-cadre and therefore could not be filled from the rank list. The Corporation's explanations for vacancy reporting were deemed satisfactory.
Issues: Whether the non-reporting of vacancies by the Corporation constituted fraud on the Constitution and relevant statutes, and if the rank holders had a right to be appointed in the non-cadre posts.
Ratio Decidendi: The court established that non-cadre posts do not need to be reported for appointment from a rank list, and private appropriation of these vacancies does not constitute a legal claim for appointment by rank holders.
Final Decision: The Writ Petition is dismissed.
(Dated this the 25 th day of July 2024) Applications were invited for recruitment to the post of Lower Division Clerk (LDC) in the 1st respondent Kerala State Beverages (M&M) Corporation Ltd. (the Corporation) by the Kerala Public Service Commission (PSC) as per Ext.P1. The petitioners submitted applications, and a written examination was conducted on 26.10.2016, and a shortlist was published, followed by a Certificate Verification. A rank list was published on 3.6.2019, and the petitioners were included as rank holders in the Ext.P2 rank list. As the petitioners were not getting appointment orders, they filed an application under the Right to Information Act, before 1st respondent and obtained Ext.P3 to P5 replies. Since there were contradictory answers in all the replies, petitioners secured a copy of the Government Order approving staff fixation in the 1st respondent and obtained Ext.P6 Government Order.
2. From Ext.P6, the petitioners came to know that there are anomalies and fraudulent backdoor appointments. The number of permanent posts of LDC in the BEVCO shows that daily wages occupy 375 and 498 permanent posts, and they are shown as vanishing categories for no reason. In addition to the above posts, 222 posts are earmarked for Abkari workers, who are the sons of the deceased workers who committed suicide after losing their jobs pursuant to the ban on the sale of arrack in 1986.
3. A Division Bench of this court in Manoj K.R. And others v. Kerala State Beverages Corporation and others ( 2006 KHC 1474 ) has directed that all regular posts vacant should be notified for appointment and all regular post now held temporary hands shall be reported in accordance with the Rules. It was also directed that no temporary hands shall be appointed to a regular vacancy. All posts manned by temporary employees for more than one year continuously shall be treated as permanent posts. In addition to the above, a few more directions were also given. Despite the judgment to report vacancies within 6 months to the 2nd respondent, the 1st respondent, in order to protect the interest of the backdoor entrance, had not reported the vacancy to the PSC. A learned Single Judge of this court in Najeema M.M. v. Kerala State Beverages (M&M) Corpn., Sasthamangalam [ 2013(1) KHC 128 ] has also directed the Corporation to identify all the posts which are manned by temporary employees for a period of more than one year, notwithstanding any change of temporary hands by another set of temporary hands and shall take appropriate steps for filling up the said posts, treating the same as permanent vacancies. Even now, the same directions are not complied with by the 1st respondent, and therefore, the petitioners have approached this court for the following prayers:
- i. Declare that the non reporting of vacancies to the posts manned by temporary/ daily wage employees for more than one year continuously, which are 498 in number, by 1st Respondent is a fraud on Constitution of India, Statute (Section 3 of the Public Service Commission (Additional Functions as respect certain Corporations and Companies) Act, 1970 & Rule 2A of the Kerala Public Service Commission (Consultation by Corporations and Companies) Rules, 1971) and this Hon'ble Court (by violation of Exhibits P8 & P9 reported decisions);
- ii. Declare that reporting of vacancies is permissible after the expiry of Rank List, in the event of illegal, fraudulent non-
- reporting of the vacancies by the State or its instrumentality;
- iii. Issue a writ, order or direction in the nature of mandamus commanding the 1st Respondent to report all posts, manned by temporary employees for more than one year continuously which are 498 in number as vacancies to the 2nd Respondent as the vacancies due to the Rank-holders of Exhibit P2 Ranklist, within a timeframe to be stipulated by this Hon'ble Court;
- iv. Issue a writ, order or direction in the nature of mandamus commanding the 2nd Respondent PSC to issue consequential advi
