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2002 DIGILAW 384 (KER)

Rajan Pillai v. State of Kerala

2002-06-20

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair, j. A common question arises in these two Original Petitions. 2. The petitioner in the former original Petition claims to be the Secretary of an Association by name ‘Kerala State Electricity Board Mazdoor Rank Holders’ Association.’ The petitioner in the other case is a rank holder in a select list of Mazdoors. The contention in the Original Petitions is that pursuant to a Notification issued by the Kerala Public Service Commission, on 29-8-1989 a select list was prepared by the PSC for the post of Mazdoor in the KSEB on 23-1-1996; that the list was valid till 22-1-1999 and that while there existed 67 vacancies of Mazdoors in the Wayanad District, the KSEB, without reporting the vacancies to the PSC for advice was proceeding to get a fresh list pursuant to Ext.P6 Notification. During hearing, it was pointed out that under Ext.P10, a new list has, in fact, come into force on 29-10-01 and that all the same, the petitioners, by virtue of the interim orders passed in these cases are entitled to get the vacancies which were available as on 22-1-1999 filled up from the old list itself. 3. The stand of the respondents is that there was no vacancy available as on 22-1-1999 which could be filled up from the old list and that while placing requisition with the PSC for fresh recruitment of Mazdoors in respect of other Districts, the Board had not made any Mazdoor in Kalpetta and that the PSC proceeded to make a common select list without specific requisition taking into account the possible vacancies that might arise in future and that is how Ext.P10 has come into vague. 4. In the absence of any dispute with regard to the fact that the petitioners were persons included in Ext. P1 list and in view of the contentions raised as above, the only question that arises for decision is whether any vacancy, in fact, existed in Waynad District as on 22-1-1999 which could have filled up from the old list. 5. It is necessary to refer to the different interim orders passed in these cases to appreciate the correct position with regard to the demand of the petitioners. 5. It is necessary to refer to the different interim orders passed in these cases to appreciate the correct position with regard to the demand of the petitioners. In C.M.P. No. 29298/98 in O.P. No. 16478/98, an order was passed on 13-1-1999 i.e., during the currency of the old list that the Board should report 35 vacancies to the PSC; but that the PSC; but that the PSC need not advice any candidate. The KSE Board was also directed to place before Court the correct number of vacancies of Mazdoors. In the other Original Petition in C.M.P. NO. 378/99, there was an order passed on 14-1-1999 which again was during the currency of the old list that 40 vacancies of Mazdoors in Wayanad District should be reported to the PSC. There again, it was specified that the PSC need make the advice with regard to such vacancies only based on fresh court orders. On 9-10-2001 a common order applicable to both the cases was passed after taking into account the submission that the aforesaid interim orders had been complied with and also that the correct number of vacancies were still not known. A statement was directed to be filed showing the number of vacancies of Mazdoors in Wayanad District which were available for being filled up and that while doing so, vacancies caused by promotions of the candidates advised earlier should also be taken into account. It was further specified that the places then occupied by the persons appointed through Employment Exchange and who have not yet been regularized will also be included in the total number. 6. On 23-11-01 an order was passed in C.M.P. No. 16478/98 calling upon the Secretary of the Board to explain the circumstances in which Ext.P6 Notification was issued by the PSC inviting fresh recruitment, if there were no vacancies as alleged by the Board in existence and also to meet the specific contention in Ext.P7 that there were 71 vacancies actually available on 22-1-1999. If those vacancies were not in existence, details with regard the filling up of those posts including the order of appointment /order of promotion was also directed to be produced. When the mater was taken up on 12-4-2002, it was noticed that there was no compliance with the aforesaid orders. If those vacancies were not in existence, details with regard the filling up of those posts including the order of appointment /order of promotion was also directed to be produced. When the mater was taken up on 12-4-2002, it was noticed that there was no compliance with the aforesaid orders. A common order was again passed on that day in these Original Petitions that a last chance would be allowed to the Secretary to fully comply with the earlier orders in letters and spirit and to produce all the relevant records in support of her contentions in Court before 25-5-02, lest she should personally appear before Court on 28-5-02 and explain the lapses. Thereafter, the Secretary filed an affidavit on 28-5-02 stating that the vacancies which were available for being filled up was 58 out of which only 52 was capable of being filled up in view of the fat that one Section Office had become defunct. She also stated 12 workers were allowed in the Distribution Section that as against the petitioners’ claim that 12 workers were allowed in the Distribution Section and 8 in the sub station, the correct position was that only 6 posts were available in the Distribution Section 4 in the Sub Stations. On that basis she calculated the total number of vacancies as 52. She further clarified that based on promotion given to Mazdoors as Linemen, 23 more vacancies arose. Some of the persons, who were given appointment orders based on the advice from the PSC, did not turn up and fresh orders were issued and a total number of 82 persons from Ext.P1 select list could be given appointment orders. She also stated that according to her information obtained from the Field Officers, no one is posted against sanctioned places of Mazdoors either through Employment Exchange or on contract basis. She concluded that as on 23-1-99 which was the date of expiry of the rank list, there existed no further vacancy. With regard to the case of the petitioners that in connection with the work for the new Thariyode Banasura Project, temporary hands are working from 1991 onwards; it was contended that there are no sanctioned places of Mazdoors for that there are no sanctioned places of Mazdoors for that project. The Secretary thus maintains that no vacancy was available to which the petitioners could be considered for appointment as on 22-1-1999. 7. The Secretary thus maintains that no vacancy was available to which the petitioners could be considered for appointment as on 22-1-1999. 7. The learned counsel for the petitioner seriously attacked the factual correctness of the said averments. It was pointed out that Ext. P2 produced in O.P. No. 16478/98 would clearly show that as on 9-8-96, 16 vacancies of Mazdoors existed in the sub station Division, Kuthumnada. From Ext. P3 letter from the Transmission Circle, Nallalam, addressed to the Chief Engineer, it was pointed out that 18 vacancies of Mazdoors existed in different sub stations of Waynad District as on 5-9-96. Ext.P11 statement of staff pattern was relied on to show that 37 vacancies of Mazdoors exist in Kalpetta. Ext. R2(a) was relied on to show that the orders relating to austerity measures did not affect Mazdoors. Ext. P13 was relied on to show that directions were issued by the Government to fill up all vacancies by promptly reporting them to the PSC. Ext. P14 letter from the Deputy Chief Engineer to the Board is relied on to show that as on 22-1-1999 there were 10 vacancies of Mazdoors in the Electrical Circle, Kalpetta. 8. The learned Standing Counsel for the KSEB submitted that Ext.P11 cannot be taken as evidence to show that 37 vacancies existed in the District as on 22-1-1999. According to him, the said vacancy position arose from redeployment of staff based on a proposal to shift the World Bank Project, Circle-II from Madakkathara to Palakkad. That arrangement came into effect only subsequent to 22-1-1999 and hence 37 vacancies did not actually exist in Wayanad as on 22-1-1999. 9. The question arises whether the vacancies actually available can be directed to be filled up from the previous list notwithstanding the fact that the new select list – Ext.P10 has come into effect on 29-10-01. 10. A full Bench of this court found in Vimala Kumari v. State (1994 (2) KLT 47) that though the Court cannot compel the PSC to advice candidates after the expiry of the validity of the list, the court has the right and duty to ensure that the appointing authority does not circumvent its statutory obligation under Rule 31(a) (ii) of the KS & SSR by delaying and defeating the right of the selected/ candidates to get appointed to the posts which fell to their lot. 11. 11. Sebastian.P Joseph v. K.S.R.T.C.(1998 (2) KLT 567) is authority for the proposition that the PSC is entitled to and has also a duty to advice candidates even after the lapse of the ranked list, provided the vacancies concerned were reported to the PSC during the period when the ranked list was alive. 12. In Dalalah Gojah v. State of Kerala (1998 (1) KLT 567), the Apex court has held that where the selection of the petitioners have been notified the right which they had for appointment against a vacancy that existed could not have been taken away merely because of the delay or inaction on the part of the Government in notifying the appointment and that as against the vacancies which were alive, the petitioner could be appointed notwithstanding the fact that a new select list had been published. 13. Bhagwan Parshu Ram College and another v. State of Haryana ((1999) 6 SCC 46) lays down that stoppage of selection process without completion through appointment of the selected candidate can be attacked as arbitrary or mala fide. Again, Purushottam v. Chairman, M.S.E.B. and another ((1999) 6 SCC 49) lays down that the right of a party to be appointed against the post to which he was selected cannot be taken away on the pretext that the panel had in the meantime expired and the post had already been filled up by somebody else. Usurpation of the post by somebody else, if not on account of any defect on the part of the petitioner; but on the erroneous decision of the employer, enables the Court to intervene and mete out justice by directing appointment. 14. Yet another decision relied on by the learned counsel for the petitioner is the unreported decision in W.A. No. 1876/97 of this court. An Original petition claiming appointment on mere or less similar facts had been dismissed by the learned single judge and the appeal arose there from. That was also a case where the respondent in the Original Petition was the filling up of 67 vacancies from a select list. There also the Board had taken the stand that no seat remained unfilled and all the seats had already been filled up. The board, however, failed to establish before Court the factual correctness of that submission. That was also a case where the respondent in the Original Petition was the filling up of 67 vacancies from a select list. There also the Board had taken the stand that no seat remained unfilled and all the seats had already been filled up. The board, however, failed to establish before Court the factual correctness of that submission. The writ Appeal was therefore allowed and thereby the Original Petition was also allowed enabling the petitioners to get appointment. The said decision was affirmed by the Apex Court in SLP Civil Nos. 8711 of 1998 as per decision dated 17-12-1998. 15. Stateof U.P. v. Ram Swarup Saro (AIR 2000 SC 1097) is authority for the properties that where a writ petition is filed during the validity of one select list, the court cannot decline to grant relief merely because the Court’s order is ultimately passed after the period of validity has run out. 16. The trend of the said decisions is that the right of the party to get appointed to a post will not be defeated merely because of the fact that the court ultimately passes its order after the period of validity of the select list has run out. The only limitation in the matter is that after the period has run out a fresh requisition cannot be made by the employer to the PSC. But once the vacancies have been reported within the period of validity of the list, the PSC would be duty bound and within rights to make the necessary advice albeit the period of validity of the list is over. The Court has always the power to intervene and give necessary directions to the PSC to make advice provided the vacancies had been reported for advice within the validity period of the select list. 17. The learned standing Counsel for the KSEB placed reliance on the decision in Mohanan v. State of Kerala (1997 (1) KLT 327) to contend that a person having been selected, does not, on account of such selection, acquire any indefeasible right to get appointment. It was laid down that empanelment is, at the best, a condition of eligibility for purpose of appointment and that that, by itself, will not amount to selection or creation of aright to be appointed unless relevant rules state to the contrary. 18. It was laid down that empanelment is, at the best, a condition of eligibility for purpose of appointment and that that, by itself, will not amount to selection or creation of aright to be appointed unless relevant rules state to the contrary. 18. Unlike the facts of the said case, here is a case where the petitioner alleges arbitrariness and mala fides against the Board in the matter of denial of appointment. What is to be considered by the Court therefore is either the said allegation is correct and whether the Board has purposely failed to report the vacancies actually in existence during the period of validity of the list, to the PSC for making the advice. There is nothing in the aforesaid decision which stands in the way of granting such relief. 19. State Bank of Travancore v. Mini (2001 (2) KLT SN at 54) which is the other decision relied on by the learned Standing Counsel lays down the proposition that whether an existing vacancy should be filled up or not is a matter of discretion available to the employer. There the Bank concerned had taken a decision not to fill up a vacancy which arose due to non-joining of a candidate; but not arbitrary or with intent to deny appointment to the petitioner. The staff budget to justify the decision for not filling up the vacancy. Consequently the writ was denied. 20. The facts of Manager, RBI v. Krishnakumar (1994 (2) KLJ 892) were also mere or less similar; the only factual difference there being that it was the R.B.I. who decided that the vacancies in its office need not be filled up for valid reasons., The decision being bona fide, and for good administrative reasons, was not interfered with by the Bench which decided that case. 21. The power of the Electricity Board not to fill up vacancies and to leave them vacant, if sufficient reasons exist, cannot at all be assailed. But here is a case where the Board has no case that there was any decision taken even as on 22-1-1999 not to fill up vacancies which existed then for any valid reason like austerity measures. The one and only case of the Board is that no vacancy existed and hence it was not reported. In that factual scenario, the aforesaid decision has no application to the facts of the present case. 22. The one and only case of the Board is that no vacancy existed and hence it was not reported. In that factual scenario, the aforesaid decision has no application to the facts of the present case. 22. Sreekantan Nair v. Muraleedharan Nair (1991 (2) KLT SN at page 3) was relied on by the learned standing counsel to contend that advice made cannot be permitted to outlive a reasonable period. It was held that to confine future appointments to those selected ears back and to deny the benefit thereof to future generations would be the negation of the concept of fair play and that the period of validity of a rank list from, out of which advice for appointment is to be made should not be extended. 23. The aforesaid decision arose in a case of different fats. That was a case where there were no vacancies in existence against which the petitioner could be advised as on the last date of validity of the list and the request was that the period should be extended so that the petitioner could get appointed. The facts in the present case are entirely different. It is important top note that even in the said decision it was categorically stated that the authority should not arbitrarilyn refuse to made appointments and that if there were vacancies, and it was unteasobable ore estraneous reasons that led to non filling up the same, the Court would certainly be justified to intervene and order that the vacancies should be filled up in due time so that the selecyted candidates might not be deprived of their rights. 24. During hearing the learned standing counsel for the Kerala State Electricity Board submitted, based on the statement filed before this Court on 20-6-2002, that even if vacancies existed as contended by the petitioners the Board is not in a position to absorb the petitioners in Board is not in a position to absorb the petitioners in view of the financial crisis that the Board faces now. It is further stated that the Board is finding it difficult even to pay salaries to the existing employees as also pension to the retired personnel and that in the circumstances the Board has taken a policy decision to keep in abeyance further recruitment for the time being. 25. It is further stated that the Board is finding it difficult even to pay salaries to the existing employees as also pension to the retired personnel and that in the circumstances the Board has taken a policy decision to keep in abeyance further recruitment for the time being. 25. Even though several opportunities were given to explain whether the vacancies pointed out by the petitioner, i.e., 34 vacancies of Mazdoors in Nallalam covered by Exts. P2 and P3 and 36 vacancies and mention of in Ext. P11 were in existence there is no answer forthcoming from the standing counsel. It has, therefore, to be taken that those vacancies are really in existence. There is a controversy with regard to the 22 posts pointed out by the petitioners as available in the Bansura Nagar Project, which is a project under execution. According to the petitioners, 22 persons have been working in that project from 1991 onwards and there is failure on the part of the Board to report the vacancies treating them as non-temporary vacancies. The answer of the standing counsel in this regard is that there is no separate sanctioned posts for the project. The details of the vacancies available in the Civil Circle, Kozhikode, which supervises the work of the above said project, are not let known. Whatever that be, there is nothing to show that the vacancies mentioned in Exts.P2, P3 and p11 have become extinct for any valid reasons. Such being the case, the petitioners are definitely entitled to be considered for appointment as and when vacancies are filled up. 26. No employer can be forced to appoint persons who are not actually wanted for work. Likewise, the employer cannot be asked to find funds for appointment through cannot be asked to find funds for appointment through loans or to incur debts in that regard. It is for the Board to effectively deliver the goods expected of it. Possibly through extravagance, under billing, political interference or other reasons the financial stringency has arisen. Once that fact is undisputed, it may not be appropriate for this Court to compel the Board to make appointments to the4 vacancies in question. That is an administrative policy decision to be taken by Board itself. There is nothing to shoe that the decision in the regard is malafide. Once that fact is undisputed, it may not be appropriate for this Court to compel the Board to make appointments to the4 vacancies in question. That is an administrative policy decision to be taken by Board itself. There is nothing to shoe that the decision in the regard is malafide. In the circumstances I do not think it proper to issue a writ of mandamus compelling the Board to fill up the existing vacancies at Nallalam and Kalpetta. All the same, it is necessary to protect the interest of the petitioners also. As already mentioned, during the currency of the rank list itself 75 vacancies have been reported, though on two occasions and not simultaneously. Of course, the Public Service Commission has now come up with a new list. But it was made clear that this was not based on any requisition from the Board as far as Wayanad District is concerned. Of course a select list was prepared for Wayanad as well. But that was merely for the sake of convenience and when Public Service Commission found it necessary to conduct a common selection examination for filling up vacancies of other districts. In such circumstances it cannot be said that the persons in the new select list have any right of precedence over those whose appointments have been denied based on policy decision taken by the Board. 27. In the circumstances these Original Petitions are disposed of with a direction that as and when the post of Mazdoors are decided to be filled up in Wayanad District under the Kerala State Electricity Board, advice list will be sought from the Kerala Public Service Commission based on the requisition already made and that only after the 75 vacancies already reported are filed up from that list any one should be got advised or appointed from the subsequent select lists. The Board is also directed to verify once again whether temporary hands are working in connection with the Banasura Nagar Project for long periods and in violation of the directions contained in Rule 5 of the Kerala State and Subordinate Service Rules, 1958, G.O. (MS) No. 112/71/PD dt. 22.4.1971 and G.O. 53063/SD4/75 PD dt. 26.7.1975 and to take steps for making regular appointments to those posts in case provisional hands are founds working for periods in excess of the limits mentioned in the aforesaid rules and others. 22.4.1971 and G.O. 53063/SD4/75 PD dt. 26.7.1975 and to take steps for making regular appointments to those posts in case provisional hands are founds working for periods in excess of the limits mentioned in the aforesaid rules and others. The Original Petitions are disposed of as above.