Appointments cannot be mandated if the appointing authority has valid reasons to not fill positions, even after directions, and must adhere to administrative regulations regarding vacancies.

JUDGMENT

P.V.BALAKRISHNAN, J

These intra-court appeals are filed challenging the judgment dated 31.07.2015 in W.P.(C)No.5881 of 2014, allowing the writ petition filed by the first respondent herein.

2. W.A.No.1191/2016 is filed by the 2^nd respondent and W.A.No.1740/2016 is filed by the 1^st respondent in the afore writ petition.

3. The first respondent/writ petitioner applied for the post of Clerk-cum-Cashier in the Ernakulam District Co-operative Bank Ltd (hereinafter referred to as 'the Bank' for short) pursuant to a notification published by the Kerala Public Service Commission (hereinafter referred to as 'the PSC' for short). The PSC, after conducting an examination, drew up a rank list for the category and published it on 12.01.2010, as per Ext.P1. The rank list came into force with effect from 31.12.2009 and the first respondent was ranked 57. In July 2013, 11 vacancies were reported by the Bank to the PSC and the last date for joining was notified as 30.09.2013. On reporting the vacancies, the PSC advised candidates up to rank No.56 from Ext.P1 List. The candidate holding rank No.54 from the open merit category did not join, though the candidate who was holding rank No.56 joined. The validity of Ext.P1 rank list was up to 31.03.2014, which was later extended to 30.06.2014. But, the Bank did not report the vacancy, which occurred due to non-joining of the person and it led to non advise of first respondent by the PSC, violating her fundamental right guaranteed under the Constitution of India . It is in such circumstances, the first respondent filed the afore writ petition seeking the following reliefs :

“1. Issue a writ of mandamus of any other appropriate writ, order or direction, directing the 1^st respondent to report the vacancy of clerk cum cashier in the 1^st respondent bank, which arose on account of the non-joining of the duty of the person holding 54^th rank in the Ext.P1, advised by the 2^nd respondent, on reporting of 11 vacancies by the 1^st respondent, in August 2013, to the 2^nd respondent, as expeditiously, at any rate within the validity period of Ext.P-1 rank list.

2. Issue a writ of mandamus of any other appropriate writ, order or direction, directing the 2^nd respondent to advise the petitioner for appointment to the post of clerk cum cashier in the 1^st respondent bank, and consequentially direct the 1^st respondent to appoint the petitioner to the post of clerk cum cashier in the 1^st respondent bank.”

4. During the pendency of the writ petition, the learned Single Judge, passed an interim order on 29.05.2014 directing the Bank to report the vacancy caused by the non joining of candidate ranked as Serial No. 54 in Ext.P1 or or before 31.05.2014. It was also ordered that the candidate shall be advised only after getting further orders in the writ petition. Thereafter, the writ petition was heard and disposed of on 31.07.2015, by passing the impugned judgment, after taking note of the rival contentions raised by the parties; the materials on record and also the fact that the order dated 29.05.2014 has not been complied with. The operative portion of the impugned judgment reads as follows:

“49.The result of the above discussion is two-fold: Firstly, the respondent bank cannot be forced to appoint the petitioner when it already has surplus staff. Secondly, whether Exhibit R2(a) amounts to reporting or not, the interim order dated 29.05.2014, of this Court cannot be ignored. This Court, under these circumstances, calls to aid the legal fiction that there was reporting of vacancy by the respondent Bank to the second respondent. What, inevitably, follows is tha