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2013 DIGILAW 1105 (KER)

Sajesh Babu v. Kerala Public Service Commission

2013-12-13

A.HARIPRASAD, THOTTATHIL B.RADHAKRISHNAN

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Judgment : Thottathil B. Radhakrishnan, J. 1. Heard the learned senior counsel and the other learned counsel appearing for the petitioners, the learned Government Pleader and the learned Standing Counsel for the Kerala Public Service Commission, for short, ‘PSC’. 2. These Original Petitions arise from the common order issued by the Kerala Administrative Tribunal on complaints raised by persons who had competed for recruitment to the category of Assistant Motor Vehicle Inspector (AMVI) on the basis of the PSC’s notification dated 11.07.2008, the last date fixed for applying in terms of which was 28.08.2008. 3. The fundamental plea of the petitioners before the Tribunal was that there was no logical, rational and reasonable assessment of the probable number of anticipated vacancies by the PSC in terms of its constitutional and statutory obligations while it fixed the number of candidates to be included in the short list. PSC published short list with 269 candidates in the main list and 354 candidates in the supplementary list for various communities eligible for reservation on the basis of the relevant quota and rota rules. After verification of the certificates and interview, the final ranked list was published with 204 candidates in the main list and 182 candidates in the supplementary list. 4. Considering the different circulars and precedents referred to in arguments, the Tribunal concluded, among other things, that the fixation of the number of candidates to be included in the short list cannot be treated as arbitrary since the number of candidates in the main list and the supplementary list in the final ranked list is totaling upto 386. 5. The learned counsel appearing for the petitioners in these matters seriously criticized the aforesaid approach and argued that the total number of persons to be included in the short list and in the ranked list cannot be determined by including those in the supplementary list because, the very purpose of supplementary list is only to supplement the main list in relation to candidates belonging to communities which are entitled to the benefit of reservation. Petitioners are right on this point. 6. Petitioners are right on this point. 6. However, the core question to be considered is as to whether there was any material before the Tribunal or at least before us now, to apply the ratio of State of Punjab and others v. Manjit Singh and others ( AIR 2003 SC 4580 ) or the decision of a Division Bench of this Court in Ajayan v. State of Kerala ( 2006 (3) KLT 854 ) and to compel the PSC to undertake the exercise of enlarging the short list and thereby leading to possible enlargement of the main ranked list and supplementary ranked list. Immediate advertence to the exercise carried out in Ajayan (supra) will show that the Bench had before it the materials which had clearly indicated that the vacancy position in different districts were not really taken note of by the PSC. Materials in that litigative process had disclosed the availability of large number of vacancies being available in different districts. Therefore, Ajayan’s case was decided, on facts, compelling PSC to enlarge the short list. In the realm of law relating to precedents, Ajayan (supra) rests not only on facts but settling the law that when there is demonstrable incongruity deducible on materials, that PSC did not focus on relevant facts and details requisite for discharge of its constitutional and statutory duties, the High Court would step in, because the situation noticed is necessarily one of arbitrariness. 7. In the case in hand, at the stage of admission, the Bench had contemplated the probability of such a question being raised for resolution, and therefore, it had issued an order on 24.10.2013 in this bunch of matters. That reads as follows: “All these original petitions are admitted. Standing Counsel appears for the Public Service Commission. Learned Government Pleader appears for the other respondents. 2. These original petitions are filed challenging the decisions of the Kerala Administrative Tribunal. The grievance of the petitioners relates to the number of candidates included in the short list and the main list. 3. In its essence, the plea on behalf of the petitioners is that the short list was prepared in 2010 and the ranked list was published in 2012 without having a realistic assessment of the probable number of vacancies that could be filled from that list during its currency which may spread out to 2015 or beyond. 3. In its essence, the plea on behalf of the petitioners is that the short list was prepared in 2010 and the ranked list was published in 2012 without having a realistic assessment of the probable number of vacancies that could be filled from that list during its currency which may spread out to 2015 or beyond. A need based assessment of the staff strength in the Motor Vehicles Department is sought to be projected relying on different materials including the counter affidavit filed in public interest litigations. The post of which we are now concerned is the category of Assistant Motor Vehicle Inspectors (AMVI). We have some counter affidavits on record as filed either before the Tribunal or before this Court when the matters had been initially pending here before they were transferred to the Tribunal. 4. Having heard the learned counsel for the petitioners, the learned Standing Counsel for the Public Service Commission and the learned Government Pleader, we are of the view that we need a comprehensive affidavit through the Transport Commissioner who will file such affidavit disclosing the actual number of vacancies that are available as on today and were available by October, 2010. This will also include the projected requirement which is in the immediate anvil since that will essentially telescope the staff strength of the Motor Vehicles Department. Let such affidavit be filed within a period of one month from today without fail. Post on 25/11/2013 in the admission list.” 8. Following the aforesaid, the Transport Commissioner has sworn to an affidavit dated 20.11.2013 stating clearly, among other things, that at the time of publication of short list by PSC, there was only one vacancy available. As noted above, 269 candidates were included in the main list and 354 candidates were included in the supplementary list for reserved categories. That was the situation as against the one available vacancy PSC’s notification was for uncertain vacancies and by stating that the notification is for anticipated vacancies. 9. Now, we proceed further to consider the affidavit of the Transport Commissioner which says that as on the date of publication of the ranked list by the PSC, 68 vacancies were available on account of creation of new offices, enforcement squads, retirement vacancies arising, etc. That event was on 03.02.2012. Later, the Government further sanctioned certain posts by expanding the Motor Vehicles Department on a need based situation. That event was on 03.02.2012. Later, the Government further sanctioned certain posts by expanding the Motor Vehicles Department on a need based situation. This led to vacancy position as ‘8’ as on 08.11.2013, i.e., the date on which the Transport Commissioner has prepared the affidavit that he has sworn to on 20.11.2013. We say so because, the statement in the affidavit is that “the vacancy position as on today (08.11.2013) is eight (8)”. It is also the admitted position and the Transport Commissioner’s affidavit averment that all other vacancies which were reported to PSC have been advised against. Therefore, the stark reality now is that there are only eight(8) vacancies available even until now, unless of course, some vacancies have arisen after 08.11.2013, and by the time we are dictating this judgment on 13.12.2013. With this fact scenario, the total number of vacancies catered from the PSC’s list would obviously, show that the short listing of candidates were to such number as could never be considered as irrational, arbitrary or as result of baseless exercise of executive authority by a statutory or constitutional functionary. Under such circumstances, we do not see any reason to interfere with the decision of the Tribunal and hold that it had acted contrary to law or erroneous in jurisdiction, within the frame work of the Administrative Tribunals Act, 1985. 10. Be that it as may, paragraph 9 of the affidavit of the Transport Commissioner indicates that if the PSC’s ranked list is not available and finalization of the ranked list after following due procedure takes indefinite time, public interest will be affected. In our view, Transport Commissioner has made a very responsible statement in that regard. We say so because, in paragraph 8 of the affidavit, the Transport Commissioner has pointed out the proposal for setting up nine (9) new offices consequent on reorganization of Taluks. It is stated that the said proposal is under consideration of the Government. If the Government are to agree to that proposal, according to the Transport Commissioner, there will be about 27 posts of Motor Vehicle Inspectors, and as much number of Assistant Motor Vehicle Inspectors consequent on promotion vacancies would arise in the Department in near future. It is stated that the said proposal is under consideration of the Government. If the Government are to agree to that proposal, according to the Transport Commissioner, there will be about 27 posts of Motor Vehicle Inspectors, and as much number of Assistant Motor Vehicle Inspectors consequent on promotion vacancies would arise in the Department in near future. We may also note that in paragraph 2 of that affidavit, the Transport Commissioner says that even if the different proposals referred to in paragraph 2 are not approved by the Government, there will be about 50 or more number of posts kept as vacant as they may arise owing to regular situations of retirement, promotion, etc. in normal course in the next two years. The Transport Commissioner has, in our view, quite rightly, having regard to the larger public interest, stated that nonavailability of ranked list for the functional post in the department will definitely negate the departmental activities being undertaken. That would definitely be against the public interest involved in the matter. This is the reasoning given by the Transport Commissioner for the suggestion ultimately made in paragraph 9 of the affidavit that enlarging the present ranked list, which is under exhaustion till the process of preparation of the new list may be considered under public interest. 11. Finding out ways and means of appointing people on permanent or temporary basis in public service following a transparent mode of selection and recruitment is entirely within the domain of the legislative and executive authority, to be appropriately and meaningfully done by those in governance in terms of the Constitution and the laws and with necessary consultative process as prescribed in the Constitution, with the PSC. The enlargement of a ranked list or alternate modes of permitting a list to operate in public interest cannot be done through judicial intervention either by the Tribunal under the Administrative Tribunals Act, 1985, or by this Court under Article 226 or 227 of the Constitution of India, unless there is material to hold that the exercise carried out by the PSC is unsustainable. Having held to the contrary, it is now for the Government to consider as to what it would do to face the situation pointed out by the Transport Commissioner in the affidavit referred to above and arrive at a logical and meaningful decision in terms of the Constitution, on the totality of the situation, which has more of public interest, having regard to the requirement of such personnel as Motor Vehicle Inspectors and Assistant Motor Vehicle Inspectors to support the Motor Vehicle Department’s activities in the growing scenario of traffic management, motor vehicle management, etc. in terms of the different laws. Hence, without prejudice to any action by the Government as may be called for in the fact situation, these Original Petitions are closed finding no reason to interfere with the order of the Tribunal. No Costs.