PYLO v. STATE OF KERALA — 1985 DIGILAW 210 (KER)

Judgment :- 1. The 17 petitioners were applicants for appointment to posts of Last Grade Servants in Alleppey District. They had applied pursuant to the notification issued by the Kerala Public Service Commission and published in Kerala Gazette dated 15-12-1981. They were included in the ranked list published on 5-3-1983 with rank Nos. between 166 and 473.8 of the petitioners in O. P. No. 8652 of 1984 and 2 petitioners in O. P. No. 10575 of 1984 belong to non-reservation communities. From these categories persons holding rank up to 128 were advised for appointment. 4 petitioners in the former and 3 candidates in the latter Original Petition belong to Ezhava and Muslim communities which are entitled to the benefits of reservation in the matter of employment. Candidates with ranks upto 142 and 170 were advised from these communities. All the petitioners are ranked lower down, the earliest with rank 166 and the last with rank 473 in the ranked list. According to R.13 of the Rules of Procedure of the Kerala Public Service Commission, the minimum period of validity of a ranked list is one year provided that the said list will continue in force till publication of a new list after the expiry of the minimum period of one year or till the expiry of two years whichever is earlier. The maximum period of validity was extended from two to three years by a recent amendment to R.13 of the Rules of Procedure, but the minimum period is still retained as one year, with the result that the Public Service Commission can reduce the validity of the ranked list by publication of a new list soon after the one year period is over. 2. The petitioners submit that even before the expiry of the minimum period of validity of Ext. PI ranked list the Public Service Commission issued afresh notification Ext. P2 dated 3-5-1983 inviting applications for appointment to last grade service in Alleppey District. It is the petitioner's case that there were many vacancies in last grade service in Alleppey District. which could have been filled up by appointment of candidates included in the ranked list; but no steps were taken by the concerned departments to fill up those vacancies. The invitation of applications for appointment afresh resulting in cancellation of Ext. P1 list is said to be arbitrary and discriminatory in these circumstances. which could have been filled up by appointment of candidates included in the ranked list; but no steps were taken by the concerned departments to fill up those vacancies. The invitation of applications for appointment afresh resulting in cancellation of Ext. P1 list is said to be arbitrary and discriminatory in these circumstances. According to the petitioners, there was no reason why candidates like the petitioners should be refused appointment by cancellation of the ranked list, Ext. P1, before the expiry of the three years period on 4-3-1986. 3. The petitioners contend that R.13 of the Rules of Procedure is beyond the competence of the Public Service Commission, since legislative power in respect of Public Service rests only with the State and not with the Public Service Commission in view of entry 4' of list II of the VIIth Schedule of the Constitution of India. It is also submitted that assuming R.13 is within the competence of the Public Service Commission, that rule is invalid as conferring an arbitrary power on the Commission to publish a new list so as to reduce the period of validity of an earlier ranked list resulting in denial of employment to selected candidates included in the former ranked list. The consequence of such arbitrariness is sought to be illustrated by a reference to Ext. P3, whereby the application of one of the candidates included in Ext. P1 ranked list was rejected by the Public Service Commission as he was over-aged. The petitioners contend that but for the arbitrary decision of the Public Service Commission to publish a new list, the petitioners would have got a fair opportunity to be appointed against vacancies arising within the three year period upto 4-3-1986. They submit that there were existing vacancies-37 in the courts, 50 vacancies of Lascars in the Mechanical Division of PW. Department, 60 vacancies in Education Department, 2 posts each in Stationery and Water Transport Departments, 17 vacancies in Land Revenue Department and a number of vacancies in the various departments in Pathanamthitta District recently formed out of some Taluks of Alleppey and Quilon Districts after the publication of Ext. P1 ranked list, which were filled up either by provisional or daily rated casual employees without advising the candidates included in the ranked list. P1 ranked list, which were filled up either by provisional or daily rated casual employees without advising the candidates included in the ranked list. The petitioners submit that the preparation of the new list has the effect of precluding the petitioners, most of whom are nearly over-aged, from ever seeking public employment. 4. In the counter affidavit filed in OP. No. 8652 of 1984, it is asserted that "the statement in para 3 of the Original Petition that there are 50 vacancies in the Mechanical Division of P. W. D and the Dock Workshop (Dredgers), Alleppey is not correct. There are only two sanctioned posts of lascars under the Mechanical Division F. W. D. Alleppey and they are not vacant. No last grade servants were engaged on daily wages in the Mechanical Division of the P. W D., Alleppey. In Medical College, Alleppey 8 vacancies of last grade servants arose and those vacancies were filled up by promoting, part-time contingent employees as per rules. In the Medical College, Alleppey no provisional employees through Employment Exchange was appointed. Also no vacancies of last grade post were reported to the Public Service Commission." In relation to vacancies in Pathanamthitta District, it is submitted that there is a ready ranked list for last grade servants in that District, which came into force with effect from 22-5-1984, and selection of candidates is being made from the said ranked list Reference was also made to five vacancies of Watchers in the Mechanical Division of P.W.D., Alleppey, of which four were filled up through the District Office of the Public Service Commission, Alleppey, and the fifth candidate had not joined duty. It is submitted that the Public Service Commission has been intimated about that vacancy and the existence of one vacancy of Greaser in the P.W.D. Division. 5. If these assertions are correct, the submission of the petitioners that existing vacancies which should have been filled up were kept unfilled so as to deny employment to persons whose names were included in the ranked list prepared by the Public Service Commission cannot be countenanced. 6. Shri T. P. Kelu Nambiar, Standing counsel for the Public Service Commission naturally defended R.13 of the Rules of Procedure. 6. Shri T. P. Kelu Nambiar, Standing counsel for the Public Service Commission naturally defended R.13 of the Rules of Procedure. He submitted that it was within the competence of the Public Service Commission to frame rules regulating the procedure in such a manner as to effectively discharge the functions entrusted with it under Art.320 of the Constitution He referred to the provisions of Art.324 of the Constitution dealing with the superintendence, direction and control of the conduct of elections by the Election Commission, and submitted that the Public Service Commission has as much power to prescribe its procedure as the Election Commission has power to prescribe the method and procedure for the conduct of elections. Reference was made to the following observations contained in the decision reported in K. P. S. C. v. Varghese, ILR. (1977)1 Ker. 523: "therefore it is only proper that the Public Service Commission lays down rules and directs strict enforcement of such rules." 7. Reference was made also to the observations in Mohinder Singh v. Chief Election Commission, AIR. 1978 SC. 851, Sadiq Ali v. Election Commission of India, AIR. 1972 SC. 187, and A. C. Jose v. Sivan Pillai, AIR. 1984 SC. 921, where it was held that the Election Commission has incidental, and ancillary powers necessary to effectuate the constitutionally granted power under Art.324 of the Constitution of superintendence of the conduct of the elections. He proceeded further to submit that the powers and functions of the Election Commission under Art.324 of the Constitution necessarily implies the incidental and ancillary powers to frame rules and regulations prescribing the procedure for exercise of its powers and the discharge of its functions. Specific reference was made to the decision of the Andhra Pradesh High Court reported is Subbarao v. Andh. Pro. P. S. Commission, AIR. 1961 A.P 378, where the provisions of R.14 and 15 relating to conduct of examinations under the Madras Public Service Commission Rules of Procedure was held to be ancillary to the powers conferred by Art.320 of the Constitution. 8. That an authority which is entrusted with the power may have the power to frame rules of general application regulating its procedure as incidental and ancillary to such power is a proposition which can hardly be doubted. 8. That an authority which is entrusted with the power may have the power to frame rules of general application regulating its procedure as incidental and ancillary to such power is a proposition which can hardly be doubted. The only requirement is that such rules should not run counter to the provisions of the existing law, including statutory instruments and the principles of fair procedure, so that such rules of procedure should eliminate arbitrariness. I should therefore necessarily hold that the Public Service Commission has power to frame rules regulating its procedure. It may be that if there are enactments made by the Legislature or rules framed by subordinate legislative authority, the rules of procedure to be framed by the Public Service Commission may not run counter to such legislative enactment or subordinate legislative instruments. Petitioners do not contend that the Rules of Procedure run counter to any provision of law, or statutory enactment, or rules made thereunder in relation to public services in the State. If that be so I cannot but hold that the Rules of Procedure are within the competence of the Public Service Commission as incidental and ancillary to the powers and functions entrusted with it under Art.320 of the Constitution of India. 9. The further question is whether R.13 of the Rules of Procedure is liable to be struck down for arbitrariness due to absence of guidelines as to when and in what circumstances the power can be exercised by the Commission. The presumption is that a high constitutional authority like the Public Service Commission will ordinarily exercise the power entrusted with it reasonably, fairly and with circumspection. Courts should also draw an inference that such powers as the Commission have will ordinarily be exercised to effectuate the constitutional mandate of giving a fair opportunity to all who seek public employment to be considered for such employment. Any instance of an action by the Public Service Commission over-stepping these purposes, or transgressing the limits of fairness and equality can be challenged specifically in appropriate proceedings. I do not, therefore, think that it is either necessary or desirable to strike down R.13 of the Rules of Procedure of the Public Service Commission as arbitrary or ultra vires. The constitutional mandates contained in Art.14 and 16 do provide sufficient guidelines for exercise of the power thereunder. 10. I do not, therefore, think that it is either necessary or desirable to strike down R.13 of the Rules of Procedure of the Public Service Commission as arbitrary or ultra vires. The constitutional mandates contained in Art.14 and 16 do provide sufficient guidelines for exercise of the power thereunder. 10. However, the question remains as to whether the Public Service Commission was fully justified in bringing into force a fresh ranked list before the expiry of the three years period for which Ext. P1 ranked list can be valid. The only reason stated in the counter affidavit filed by the Public Service Commission is that "If no notification had been issued in 1983 a large number of candidates who were within age as on 1-1-1983, but would cross the upper age limit as on 1-1-1984, would have permanently lost their chances. It may be noted that this constitutes an age group of candidates in the immediate vicinity of the upper age limit entitled to be called for interview according to the existing principles of preliminary elimination. Though Ext. P2 notification was issued on 3-5-1983 with a view to averting hardship to the said category of candidates, it may be noted that no hasty steps were taken immediately thereafter in 1983 for the preparation of a new ranked list thereby putting the fate of the candidates included in Ext P1 ranked list in jeopardy. As already explained, if no notification had been issued in the year 1983' a large number of candidates in the open market eagerly awaiting a chance for selection would have been barred from even trying their chance for selection to the post." The anxiety of the Public Service Commission in issuing Ext. P2 notification dated 3-5-1983 as explained in the extract of the counter affidavit was to see that persons who were near about the maximum age limit were not denied the chance of being considered for appointment. Counsel for the petitioners submits that the date relevant for appointment is the date mentioned in the notification, or at least the date of application, and therefore, it is not necessary to cancel Ext. P1 list so as to enable those who were not included in Ext. PI list to obtain a chance for consideration for appointment. In other words, the case of the petitioners is that the purpose would have been served without cancelling Ext. P1 list so as to enable those who were not included in Ext. PI list to obtain a chance for consideration for appointment. In other words, the case of the petitioners is that the purpose would have been served without cancelling Ext. P1 list by publishing a ranked list pursuant to Ext P2. If the publication of the fresh list was delayed until after the completion of three years of Ext. P1, persons like the petitioners, who were included in the earlier list would also have fair opportunity of being appointed, whereas persons included in the subsequent list would not have lost any chance either. On the other hand, the cancellation of Ext. P1 list results in deprivation of any future chance of appointment in Public Service to some at least among those persons who were included in Ext. P1 list, as is evident from Ext. P3 communication. 11. Counsel for the petitioners seems to be justified in his submission that the object mentioned for inviting applications afresh, without waiting for the completion of the three years period of validity of Ext. P1 list, could have been achieved even without cancelling Ext. P1 list. No other reasons are mentioned justifying cancellation of Ext. P1 list by bringing a ranked list pursuant to Ext. P2 into force earlier than the expiry of Ext. P1 list on completion of three years 12. It is true that there is keen competition to obtain public employment because of the acute shortage of employment in our country. Persons who had been successful in being selected for appointment and were likely to be over-aged for any subsequent selection really do deserve some consideration at the hands of the employment agencies of the State, so that their chances are not lost for all time by reason of the cancellation of the select list earlier than the expiry of its validity. It is true that every candidate is entitled to be treated equally and considered for appointment. But, in a case where persons who had been once selected are likely to loose any chance of future employment because of the cancellation of the list by publication of a fresh list, the employment agencies have to consider such insistence with greater than ordinary concern. The procedural steps taken by the Public Service Commission to issue the second notification may have commendable objects. The procedural steps taken by the Public Service Commission to issue the second notification may have commendable objects. The anxiety of the Public Service Commission to give an equal chance to persons who are likely to become overaged shortly is also perfectly understandable. But once that object is achieved by issue of a notification inviting applications, it is doubtful whether it was necessary to have cancelled the first list before the expiry of the maximum period of its validity with the disastrous consequence of loss of opportunity for public employment to at least a few of the successful candidates included in Ext. PI ranked list. I am not suggesting that a person, by reason of his inclusion in the ranked list alone, is entitled to insist that he shall be appointed. No such right can be claimed in view of the decisions of this court reported in 1977 KLT. 290,1977 KLT. 818, and ILR 1979 (1) Ker. 229, that even a person who has been included in the list of approved candidates cannot insist on a right to be appointed. The question which really arises in this case is as to whether persons included in the ranked list could be denied any opportunity of being considered for public employment by reason of the cancellation of the list consequent upon the publication of a fresh list earlier than the date of expiry of that list for the only purpose of enabling a fresh set of candidates to apply for appointment before they cross the maximum age limit for filing such applications. 13. Counsel for the Public Service Commission submitted that similar ranked lists published in all other Districts of the State have been superseded by publication of subsequent lists, pursuant to notifications in the nature of Ext. P2. It was also submitted that cancellation of lists in the nature of Ext. P) was automatic on the publication of the new list after the expiry of the minimum period of one year. Fresh lists pursuant to new notifications in the nature of Ext. P2 having been published and brought into force on 7-6-1985, it was submitted that the earlier lists in the nature of Ext. P1 have ceased to be in existence; and it will create avoidable administrative difficulties if the old lists are directed to be resurrected It was submitted that it is impossible to operate two ranked lists simultaneously. P2 having been published and brought into force on 7-6-1985, it was submitted that the earlier lists in the nature of Ext. P1 have ceased to be in existence; and it will create avoidable administrative difficulties if the old lists are directed to be resurrected It was submitted that it is impossible to operate two ranked lists simultaneously. Counsel also suggested that no direction relating to the new list brought into force on 7-6-1985 may be given in this Original Petition since none of candidates who are included in that list are parties to this Original Petition. Counsel for the Public Service Commission also expressed an apprehension that if there are no sufficient number of candidates belonging to the respective communities in Ext. P1 list, it may not be possible to make appointments in accordance with R.3(a) and (b) read with R.14 to 17 of the State and Subordinate Services Rules. The last submission is that candidates included in the subsequent list also may become over-aged if for the purpose of giving some concession to the petitioners the period of operation of Ext. P1 list is to be extended. 14. I do perfectly understand the difficulties which are likely to result from a direction to revive the lists which have, already been cancelled. It has to be remembered that the list pursuant to Ext. P2 was brought into force during the pendency of the Original Petition. It is needless to emphasise that this court is competent to issue necessary directions to give effective relief to the petitioners notwithstanding what has transpired in relation to the subject-matter of the Original Petition during the pendency of the same. It is true that this Court had not issued orders of stay against the publication of the ranked list pursuant to Ext. P3 notification. But any such action taken by the parties to the Original Petition during the pendency of the same can but be subject to the final judgment of this Court. It is also important to note that the relief sought by the petitioners is, in effect only against the operation of a new ranked list prepared in pursuance to Ext. P1 notification. In that sense, the rights of none of the candidates included in the second list are damnified. At worst, it will only amount to a postponement of their appointments. P1 notification. In that sense, the rights of none of the candidates included in the second list are damnified. At worst, it will only amount to a postponement of their appointments. I do not find any justification in the imaginary difficulty which is likely to be created by absence of candidates belonging to the communities which are entitled to reservation according to the provisions of R.14 to 17 of the Kerala State and Subordinate Services Rules. Ext. P1 list contains over 600 candidates. The petitioners themselves are ranked as serial numbers 166 to 473. Seven out of them belong to Ezhava and Muslim communities. I do net think that any extra-ordinary difficulty will be occasioned by the operation of Ext. P1 list for the period of three years for which it can be operative while at the same time without denying employment opportunities to others. 15. In the context of the right of the petitioners to. be given a fair opportunity to be considered for public employment, it seems to me that all efforts should be made to effectuate that right in a fair and reasonable manner without impairing the corresponding rights of other candidates. I shall not betaken to have suggested that the practice of the Public Service Commission of issuing notifications and inviting applications annually from candidates in relation to posts which are likely to have regular annual in take is in any manner incorrect or illegal. The periodicity of such notifications is a matter entirely to be decided by the Public Service Commission. It is however important that except in exceptional circumstances and for compelling reasons, candidates once selected are not subjected to a short shrift in the matter of public employment. This should be more particularly so in the case of candidates who are likely to become over-aged by the time the second notification is issued. 16. On a consideration of the entire matter, I am satisfied that the reasons mentioned by the Public Service Commission for bringing into force a fresh ranked list prepared in pursuance of Ext. P2 notification so as to cancel Ext. P1 list depriving the petitioners for all time of any chance for being considered for appointment does not seem to be correct. The Public Service Commission will therefore treat Ext. P1 list as valid until the completion of the period of three years of its validity. P2 notification so as to cancel Ext. P1 list depriving the petitioners for all time of any chance for being considered for appointment does not seem to be correct. The Public Service Commission will therefore treat Ext. P1 list as valid until the completion of the period of three years of its validity. The ranked list prepared pursuant to Ext. P2 notification will be operative only after that period. Vacancies in the category of last grade servants in Alleppey District will be filled up by advising candidates from Ext. P1 list till 4-3-1986. The original Petition is allowed as above. There will be no order as to costs.