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2000 DIGILAW 439 (KER)

Mustharjan v. State of Kerala

2000-08-21

K.K.USHA, R.BHASKARAN

body2000
Judgment :- K.K. Usha, J. Appellants are petitioners in O.P. Nos. 13560 and 16071 of 2000. The appellants were appointed as ICDS Supervisors on a provisional basis pursuant to a notification dated 17.12.1993 issued by the Directorate of the Department for filling up 104 vacancies. Their appointment was on contract basis and for a period of two years or until regular hands join duty. Earlier Kerala Public Service Commission had invited application to the post of Supervisors ICDS by gazette notification dated 14.12.1993. The petitioners had not applied pursuant to the above notification. The Public Service Commission processed the application received by it and prepared a rank list including several candidates. The petitioners among other reliefs challenged the rank list. Learned Single Judge dismissed the original petitions. Aggrieved by the above, the petitioners have come up in appeal. 2. The only point pressed before us by the learned counsel for the appellants was that the Public Service Commission has committed a grave error in drawing up a list containing 1445 candidates at a time when the notification was against 3 vacancies invited by the Public Service Commission. It is the case of the appellants that the above action of the Public Service Commission is arbitrary and violative of petitioners' fundamental rights and also against the decisions of the Supreme Court in Madan Lai and others v. State of Jammu and Kashmir and others, AIR 1995 S.C.1088, Ashok Kumar and others v. Chairman, Banking Service Recruitment Board and others, AIR 1996 SC 976, and a decision of this Court in Kerala Agricultural University v. Gopinathan Unnithan,1996 (1) KLT 344. We find that the learned Single Judge has considered the above mentioned contention elaborately and has come to the conclusion that the Public Service Commission has not acted in violation of the dictum laid down in the above mentioned decisions nor its action can be called arbitrary and violative of petitioners' fundamental rights. A reference to the notification, which is produced as Ext. P1 in O.P. No. 1671/2000, would show that there is a specific statement that 3 vacancies were in existence at that time. It is further notified that the list will be in force for a minimum period of one year and a maximum period of three years. A reference to the notification, which is produced as Ext. P1 in O.P. No. 1671/2000, would show that there is a specific statement that 3 vacancies were in existence at that time. It is further notified that the list will be in force for a minimum period of one year and a maximum period of three years. Appointments will be made from the list to the 3 vacancies referred in the notification and also to the other vacancies which will be reported during the pendency of the list. 3. It is submitted on behalf of the respondents before us that even before the list was published large number of vacancies in the above mentioned post had arisen. The list was published only in the year 1999. As on 13.2.1995 106 vacancies were reported. As on 11.8.1995 further 55 vacancies were available and as on 11.11.1996 another 118 vacancies. The list will be in force for a period of 3 years. 4. Under these circumstances, the inclusion of 1445 candidates in the list cannot be considered as an arbitrary action. The learned Single Judge has elaborately considered the question whether such an action on the part of the Public Service Commission would be in violation of the dictum laid down by the Supreme Court or this Court in the decisions referred above. AIR 1996 SC 976 would show that it is open to notify both existing as well as expected vacancies while inviting applications. In Ext. P1 notification even though specific number of expected vacancies are not mentioned, it has been made clear that appointments will be made from the list in the vacancies which arise during the pendency of the list. Such vacancies are the expected vacancies. In Benny v. Registrar of Co-op. Societies, 1998(1) KLT 858 the Supreme Court had considered the delay that may occur in the process of selection and appointment and it was held in such contingencies when appointments are made depending upon the vacancies available and in excess of the vacancies advertised it cannot be said that the appointment is made in excess of the strength or cadre approved. 5. A later decision of the Supreme Court in Virender S. Hooda and others v. State of Haryana and another (1999) 3 SCC 696, this question came up for consideration again. In 1991 Haryana Public Service Commission advertised 12 posts of Haryana Civil Service (Executive branch). 5. A later decision of the Supreme Court in Virender S. Hooda and others v. State of Haryana and another (1999) 3 SCC 696, this question came up for consideration again. In 1991 Haryana Public Service Commission advertised 12 posts of Haryana Civil Service (Executive branch). Those candidates who did not find their place within 12 in the rank list contended that some of the selected candidates did not join duty and therefore they are entitled to be considered against those vacancies depending upon their rank in the competitive examination. They relied on two circulars, according to which the vacancies which arise within six months from receipt of recommendation from the Commission, should be filled up from the waiting list maintained by the Commission. Those circulars also provided that if additional vacancies occurred after the Commission has made recommendations such additional vacancies can also be filled up from among candidates recommended by the Commission. Their argument did not find success with the High Court. The Apex Court took a different view. It was held that in terms of the circulars referred above vacancies which arise within six months from the date of recommendation of the Commission are to be filled up out of the waiting list maintained by the Commission. In respect of vacancies which arise after the expiry of six months it is necessary to send requisition to the Commission. Those vacancies can be filled from among the additional candidates recommended by the Commission. 12 posts for direct recruitment were vacant when the advertisement for recruitment was made which was held in 1991. According to the Apex court, the view of the High Court that vacancies arose after selection process commenced has no relevance is contrary to the declared policy of the Government in the matter of filling up such posts from the waiting list as is discernible from the circulars. When apolicy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the. rules, the appointing authority ought to follow the same. The appellants were thus found entitled for appointment in the vacancies which arose after the selection process commenced. 6. rules, the appointing authority ought to follow the same. The appellants were thus found entitled for appointment in the vacancies which arose after the selection process commenced. 6. R.4 of the KeralaPublic Service Commission Rules of Procedure provides that when a written examination and/or a practical test is conducted by the Commission for recruitment to a service or post, the Commission shall announce among other things the number of vacancies to be filled up from among the candidates for the examination. Provided that when the exact number of vacancies are not ascertainable, the Commission may either announce the approximate number of vacancies to be filled or state that the number of vacancies has not been estimated. The list has to be prepared in the order of merit of such number of candidates as the Commission may determine from time to time. R.13 provides that rank list published by the Commission shall remain in force for a period of one year from the date on which it was brought into force provided that the said list to be continued in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years which ever is earlier. The above provisions would make it clear that the action of the Public Service Commission in drawing up a list of candidates containing 1445 candidates in the present case is not against the rules or the policy declared by the State. 7. We, therefore, find no merit in the challenge against the rank list drawn up by the Public Service Commission for the reason that it was not limited to the three vacancies referred in the notification. 8. In the result, the appeals fail and they stand dismissed.