Jyothish Kumar v. State of Kerala — 1996 DIGILAW 288 (KER)

Judgment :- K.A. Abdul Gafoor, J. Ext. P1 is a notification issued by the Public Service Commission on 14.6.1988 inviting application to the post of Field Worker in Health Department in the districts of Trivandrum, Alleppey, Ernakulam and Kannur. A written test was held on 29.4.1994 and a ranked list of candidates advised for appointment was published on 21.12.1995, after more than 6 years. The petitioner submits that appointment from the said list shall not exceed the vacancies notified in Ext. P1. In other words, the petitioner submits that, when a notification is issued by a recruiting agency specifying number of posts no candidates in excess of the vacancies so notified shall be appointed from the list prepared pursuant to that notification. The petitioner belongs to Alleppey District. Therefore, the petitioner prays that the list prepared by the Public Service Commission pursuant to Ext. P1 shall not be operated for appointment of candidates in excess of 22 vacancies notified in Ext. P1. Consequently, he seeks for a direction commanding the respondents not to appoint any candidate from that list in excess of such 22' vacancies. 2. Thus, the issue in this Original Petition is whether the Public Service Commission can advise candidates from a list prepared pursuant to a notification, in excess of the vacancies notified even if there are such excess vacancies at the time of publication of the list or 'further vacancies had arisen during the currency of the list. 3. The petitioner had not completed 18 years of age on the relevant date fixed in Ext. P1 notification and was therefore, not eligible to apply for appointment to the post. The petitioner submits that large number of candidates are advised from the list prepared pursuant to Ext. P1. He submits that, if appointments are made exceeding the number of vacancies notified, he will he deprived of his opportunity of being considered for appointment against one of the vacancies of field workers which arose after he became qualified. He submits that every citizen of this country had got a fundamental right of equality of opportunity in the matters relating to employment under the State and that right would entitle him to be considered for such employment. He further submits that it is mandatory that each post is notified and opportunity of being considered afforded to every citizen. He submits that every citizen of this country had got a fundamental right of equality of opportunity in the matters relating to employment under the State and that right would entitle him to be considered for such employment. He further submits that it is mandatory that each post is notified and opportunity of being considered afforded to every citizen. In support of this contention, the petitioner has cited the decisions reported in Kerala Agrl. University and Ann v. V.K. Gopinathan Unnithan & Ann (1996 (1) KLT 344 =1996 (1) KLJ 257) and Ashok Kumar and others v. Chairman, Banking Service Recruitment Board and Others (AIR 1996 SC 976), 4. A Division Bench of this Court in Kerala Agrl. University and Ann v. V.K. Gopinathan Unnithan & Ann (1996 (1) KLT 344=1996 (1) KLJ 257) held as follows: "When one vacancy alone was notified, candidates ranked in the select list cannot be appointed to the vacancies that arose subsequently. Recruitment of candidates in excess of the notified vacancy is a denial and deprivation of the constitutional rights of other qualified hands under Art.14 read with Art.16(1) of the Constitution of India. Therefore, a person included in the select list cannot be appointed to the subsequent vacancies, which were not covered by the Notification. Any appointment to the vacancies that had arisen subsequently and which were not notified for recruitment is unconstitutional". (Emphasis applied) In that case, only one vacancy in the post of professor of statistics was notified. The notification did not cover any other vacancy. It was in the above circumstances, this court held that recruitment to the vacancies i n excess of that notified amounts to violation of Art.14 and 16 of the Constitution of India. The Division Bench has followed the decision in Ashok Kumar and Others v. Chairman, Banking Service Recruitment Board and Others (AIR 1996 SC 976). In that case, there were 960 vacancies in the State Bank of India and 1713 vacancies in other nationalised banks. The Recruitment Board prepared a select list in excess of the requirement notified by the respective banks and She list contained 3100 candidates. Dealing with such case, Supreme Court held that; "The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies arisen subsequently without being notified for recruitment, is unconstitutional". The Recruitment Board prepared a select list in excess of the requirement notified by the respective banks and She list contained 3100 candidates. Dealing with such case, Supreme Court held that; "The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies arisen subsequently without being notified for recruitment, is unconstitutional". This was also a case, where the notification did not cover the arising vacancies. 5. On the other hand, Ext. P1 notification though made mention of certain specified number of vacancies in the respective district, it was specifically made clear in Note No. I that the rank list to be prepared pursuant to the notification shall be kept alive for 3 years and that candidates included in the list will be advised to the vacancies specifically made mention and also to the vacancies that arise during the currency of the list, for appointment to the said post notified. Here, the notification was in 1988 and the list was prepared in 1994. About 51/2 years had taken to prepare the list. Naturally, several vacancies would have arisen during this long time taken to complete the process. The list is to be kept alive for 3 years. Naturally, further more vacancies will arise during such period. Therefore, to continue the list only to the 22 vacancies as contended by the petitioner in Alleppey District would defeat the entire recruitment process. The Public Service Commission is following a definite procedure for the purpose of recruitment. That procedure is laid down in the form of Rules notified in gazette dt.5.10.1976. R.14 of the Public Service Commission Rules of Procedure reads as follows: "The commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked list are kept alive in the order of priority, if any, in the order of merit subject to the rules of reservation and rotation, wherever they are applicable". Thus, the notification as well as the Rules of procedure followed since long provides that all the vacancies notified and existing and arising during the currency of the list, which may be kept even for a period of 3 years, shall be made use for appointment to the candidates included in the list. Thus, the notification as well as the Rules of procedure followed since long provides that all the vacancies notified and existing and arising during the currency of the list, which may be kept even for a period of 3 years, shall be made use for appointment to the candidates included in the list. Therefore, in such case taking into account, the Note-I in the notification, the vacancies that are to arise till the expiry of a list are the vacancies notified as per notification like Ext. P1. Ext. P1 is not a notification like the one considered by the Division Bench in Kerala Agrl. University and Ann v. V.K. Gopinathan Unnithan & Ann (1996 (1) KLT 344 =1996 (J) KLJ 257) and Ashok Kumar and others v. Chairman, Banking Service Recruitment Board and Others (AIR 1996 SC 976). 6. In this respect, the following passage from the Supreme Court judgment mentioned above is worth to be extracted. "Art.14 read with Art.16(1) of the Constitution enshrines fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Art.14 read with Art.16(1) of the Constitution". Therefore, if vacant posts arising or expected are notified, it will not offend the fundamental rights under Art.14 and 16 of the Constitution of India. A reading of note-1 under item IV in ExLA will shows that the notification covers not only the estimated vacancies but also the vacancies that are to arise up to and inclusive of the date of expiry of the rank list prepared pursuant to that notification. So, the vacancies from 1988 and till the expiry of the list published on 21.12.95 are covered by the notification Ext. P1. Therefore, the decisions in Ashok Kumar and Others v. Chairman, Banking Service Recruitment Board and Others (AIR 1996 SC 976) and Kerala Agrl. University and Ann v. V.K. Gopinathan Unnithan & Ann (1996 (1) KLT 344 =1996 (1) KLJ 257) cannot have an application for recruitment pursuant to Ext. P1 notification. 7. In the nature of the Ext. P1. Therefore, the decisions in Ashok Kumar and Others v. Chairman, Banking Service Recruitment Board and Others (AIR 1996 SC 976) and Kerala Agrl. University and Ann v. V.K. Gopinathan Unnithan & Ann (1996 (1) KLT 344 =1996 (1) KLJ 257) cannot have an application for recruitment pursuant to Ext. P1 notification. 7. In the nature of the Ext. P1 notification, the decision of the Supreme Court in Union of India and Others v. Ishwar Singh Khatri and Others (1992 Supp (3) SC 84) is more appropriate. It was held in that case as follows: "Mr. Subba Rao for the appellant urged that the candidates included in the panels prepared by the Selection Board as far back in June 1984 cannot be held to have the right to appointment against vacancies arising subsequent to preparation of the panels. According to counsel, if that right is conceded, it would be arbitrary and contrary to Art.16(1) of the Constitution, which guarantees opportunity for all citizens in matters of employment or appointment to any office under the state. There is little doubt about this proposition. The selected candidates ordinarily will have a right to appointment against vacancies notified or available till the select list is prepared. They in any event cannot have a right against future vacancies". "5. But in the present case, it cannot be said that the anticipated vacancies arising upto the preparation of panels were not taken into consideration by the selection Board while preparing the panels for recruitment". In terms of the notification, it cannot be said that future vacancies are taken note of. Future vacancies in the light of the terms of the notification means that the vacancies arising after the date of expiry of the list. The Supreme Court in Prem Singh and Others v. Haryana State Electricity Board and others UT 1996 (5) SC 219) held as follows: "From the above discussion of the case law, it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies". It was further held that: "The Selection Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc., by the time the selection process was completed. It was further held that: "The Selection Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc., by the time the selection process was completed. It would not be just and equitable to invalidate all the appointments made on posts in excess of that notified". Ext. P1 notification makes mention of filling up of the vacancies that are to occur till the expiry of the list prepared. Future vacancies may include any vacancy that may occur subsequent to the expiry of list. All the vacancies that are to occur till the date of expiry of the list are anticipated vacancies covered by the notification itself. In the above circumstances, Ext. P1 notification covers the vacancies that are existing and arising till the date of expiry of the list prepared pursuant to that notification. Therefore, the petitioner cannot contend that in appointing candidates in excess of 22 vacancies notified in Alleppey District, his fundamental rights are violated. He cannot get declaration or direction as prayed for in the Original Petition. Accordingly Original Petition fails and it is dismissed.