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1993 DIGILAW 46 (KER)

Vimala Kumari v. State

1993-01-22

K.SREEDHARAN, M.JAGANNADHA RAO, P.KRISHNA MOORTHY

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Judgment :- Krishnamoorthy, J. This Review Petition is filed by respondents 1 to 3 in the Writ Appeal who are petitioners in O.P.No.6720 of 1986 against which the Writ Appeal was filed. 2. The Writ Appeal was heard along with certain other Writ Appeals and was disposed of by a common judgment dated 4th December, 1992. The Writ Appeals were filed by the State. 3. It is alleged in the Review Petition that the review petitioners had engaged Mr.K.S. Rajamony, Senior Counsel as their advocate who was appointed as a Member of the Kerala Public Men Corruption Commission and on his accepting the assignment the petitioners engaged the present counsel Mr. James Vincent who filed Vakalath in the case on 23-3-1992. He had also filed C.M.P.No.2294 on 23-3-1992 for an early posting of the Writ Appeal. But when the Writ Appeals were posted for hearing before the Full Bench in November, 1992 the name of counsel was omitted to be noted in the cause list and the names of the parties alone were shown. Accordingly counsel had no notice and the Writ Appeal happened to be disposed of without hearing counsel for the review petitioners. Even though in the judgment Sri.K.P.Satheesan is shown as having represented the review petitioners, his name was also not noted in the cause list so that he also could not take part in the hearing of the case. Accordingly this Review Petition is filed to review the judgment and re-hear the petitioners. 4. On verification of the files it is seen that though the present counsel had filed vakalath on 23-3-1992, his name was not shown in the cause list and so he could not appear while the case was taken up for arguments. In these circumstances, sufficient grounds are made out by the review petitioners to hear the counsel appearing for them as also counsel for the other parties and we are considering the matter in detail after hearing the arguments of counsel for the review petitioners also. This order shall be treated as an addendum to the main judgment. 5. Writ Appeal No.967 of 1987 arises out of O.P.No.6720 of 1986 which was heard along with other Original Petitions filed by others who were similarly situated. The writ petitioners had applied for appointment as Sales Tax Officers pursuant to a notification by the Public Service Commission dated 20-7-1982. 5. Writ Appeal No.967 of 1987 arises out of O.P.No.6720 of 1986 which was heard along with other Original Petitions filed by others who were similarly situated. The writ petitioners had applied for appointment as Sales Tax Officers pursuant to a notification by the Public Service Commission dated 20-7-1982. Petitioners were included in the ranked list dated 31-10-1984. Their complaint was that in spite of the prescription of the ratio 1:3 in the Kerala Agricultural Income Tax and Sales Tax Service Special Rules, the number of vacancies ear-marked for direct recruits was not reported to the Public Service Commission consequent to which the Departmental promotees were wrongly occupying such positions on provisional promotions. According to the petitioners if all the existing vacancies available for direct recruitment were reported to the Public Service Commission, the petitioners who were included in the ranked list would have been appointed. Later by G.O.(P) 131/85/PD dated 4-11-1985 - the ratio 1:3 between direct recruits and promotees was amended as 1:4 with retrospective effect from 1-4-1981 .Petitioners challenged the vires of the amendment to the Special Rules with retrospective effect from 1-4-1981 and consequently they sought the issue of a writ of mandamus directing the respondents to report 25% of the vacancies in the category of Sales Tax Officers which arose subsequent to 1-4-1981 to the Public Service Commission to appoint direct recruits in the vacancies ear-marked for them in accordance with the Special Rules. 6. The learned Single Judge rejected the prayer of the petitioners to quash the G.O. dated 3-11-1985 whereby the percentage of vacancies available for direct recruits was reduced from 25% to 20%. On the question as to the number of vacancies available for direct recruitment, the learned judge excluded 4 vacancies as having been filled up by special recruitment under R.17A of the K.S.S.R., under the Sports Quota and also under the Dying-in-Harness Scheme. On that finding and applying the reduced ratio of 20% earmarked for direct recruits, the learned judge came to the conclusion that 7 more vacancies have to be filled up by direct recruitment and accordingly the Board of Revenue was directed to immediately report 7 vacancies to the Public Service Commission within a period not exceeding 10 days from the date of judgment. It was further ordered that on receipt of such a report, the Public Service Commission shall advice 7 more candidates from the ranked list for appointment and also issued certain directions for appointing those persons as sales tax officers. It was further directed that the Board of Revenue will also reassess the actual number of vacancies available for the period from 1-4-1974 to 30-10-1987 and if it is found that the direct recruits are entitled for appointment against more vacancies, the Board of Revenue shall report the matter to the Commission before 30-10-1987 and shall effect appointments from the ranked list of candidates prepared by the Public Service Commission in accordance with the Special Rules and the rules regarding reservation contained in Rules 14 to 17 of the K.S.S.R. 7. In the Writ Appeals the above judgment was challenged by the State mainly challenging the exclusion of candidates recruited under R.17A, under the Sports Quota and under the Dying-in-Harness Scheme from the quota available for direct recruits. 8. At this stage, it is to be noted that by order dated 7-12-1987 in C.M.P. NO.31619 of 1987 a Division Bench of this Court stayed the operation of the judgment dated 18-9-1987 in O.P.No.6720 of 1986 till the disposal of the Writ Appeal. The present petitioners did not take any steps to get the order vacated or modified and the stay order continued till the disposal of the appeal. But in one of the connected appeals though only the right but also the duty to ensure that the appointing authority does not circumvent its statutory obligation under R.31(a)(ii) of the Kerala State and Subordinate Services Rules by delaying and defeating the rights of the selected candidates to get appointed to the posts which fall to their lot. Procedure, after all, is meant to further justice, not to frustrate it." With great respect, we find it difficult to agree with the above observations, for firstly giving such a direction will be clearly violating the statutory rules and secondly the mere fact that a person's name has been included in a ranked list does not give him any right to the post or to be appointed to that post. See Shankarsan Dash v. Union of India ( A.I.R 1991 SC 1612). See Shankarsan Dash v. Union of India ( A.I.R 1991 SC 1612). If no request is made by the State to the P. S.C. for advising candidates during the currency of a list, the Court cannot compel the P.S.C. to advise candidates after the expiry of the list. 23. As stated earlier, in this case the direction given by the learned Single Judge was stayed by the Division Bench. The subsequent direction was only to report 7 vacancies and that too before 30-10-1987. Petitioners did not take any steps to get the stay order modified. The 7 candidates stand on a different footing, for they had obtained a direction from this Court to report 7 vacancies to the P.S.C. before 30-10-1987. So far as the review petitioners are concerned, there was no such direction. The list expired in the meantime and this Court cannot now direct the Commission to advise the petitioners or direct the State to appoint the petitioners, for it will be a clear violation of the statutory rules which this Court is not entitled to do. 24. The next contention raised by counsel for the petitioners is that the benefit of the order of this Court is obtained by persons who have not come to this court. This is inevitable, for this Court can direct appointments to be made only in accordance with the ranking in the list. The mere fact that certain persons came to this Court cannot be a ground for this Court to overlook the ranking given by the Public Service Commission in the list. The appointments can be made only in accordance with the ranking and i n that view of the matter this Court only directed the vacancies to be filled up in accordance with the ranking in the list and there is no infirmity in that direction. 25. In view of what is stated above, we do not find any reason to modify the judgment in this case and accordingly the Review Petition is dismissed, but, in the circumstances, without any order as to costs.