JUDGMENT : 1. The petitioner applied for the post of Guard Grade II (Ex-servicemen) in the 1st respondent Kerala State Road Transport Corporation (KSRTC), pursuant to Ext.P1 Gazette notification dated 14.06.2019 (Category No.149/2016) issued by the 3rd respondent Kerala Public Service Commission (KPSC), in order to fill up a 'No Candidate Available' (NCA) vacancy for Latin Catholic/Anglo Indian (LC/AI). After conducting an interview, the 3rd respondent KPSC published Ext.P2 ranked list, which came into force with effect from 12.12.2017. Based on the ranking in Ext.P2 ranked list, the petitioner was advised for appointment as Guard Grade II (Ex-servicemen) in the 1st respondent KSRTC, vide Ext.P3 advice memo issued by the 3rd respondent KPSC dated 14.03.2018. 2. The grievance of the petitioner is that, he is denied 1st appointment to the post of Guard Grade II in the respondent KSRTC, based on his ranking in Ext.P2 ranked list, 3rd despite the issuance of Ext.P3 advice memo by the respondent KPSC. The petitioner would point out that the vacancy notified in Ext.P1 notification is NCA vacancy for the community LC/AI, which has to be compensated as per the statutory mandate. The petitioner would contend that the denial of appointment by the 1st respondent KSRTC would amount to infringement of his fundamental rights. This writ petition has been filed under Article 226 of the Constitution of India, seeking a declaration that the petitioner, who is included in Ext.P2 ranked list published by the 3rd respondent KPSC, which came into effect from 12.12.2017, and advised for appointment as Guard Grade II (Ex-servicemen) in KSRTC, vide Ext.P3 advise memo dated 14.03.2018, is entitled to be appointed to the said post. The petitioner has also sought for a writ of mandamus commanding the 2nd respondent, who is the Managing Director of KSRTC to issue appointment order, appointing him in the post of Guard Grade II (Ex-servicemen) notified as per Ext.P1. 3. On 15.10.2018, when this writ petition came up for admission, the learned Standing Counsel for KSRTC and also the learned Standing Counsel for KPSC sought time to get instructions. 4. Thereafter, on 27.11.2018, the learned Standing Counsel for KSRTC took notice on admission for respondents 1 and 2 and the learned Standing Counsel for KPSC took notice on admission for the 3rd respondent. The respondents were directed to file counter affidavits within three weeks. 5. 4. Thereafter, on 27.11.2018, the learned Standing Counsel for KSRTC took notice on admission for respondents 1 and 2 and the learned Standing Counsel for KPSC took notice on admission for the 3rd respondent. The respondents were directed to file counter affidavits within three weeks. 5. Along with I.A.No.2 of 2019, the petitioner has placed on record Ext.P4 letter dated 08.03.2019 issued by the 2nd respondent Managing Director of KSRTC, to the Managing Director of Kerala State Ex-servicemen Development Corporation (KEXCON), wherein it has been stated that, 223 vacancies of Security Guards exist in various units of KSRTC. Therefore, the 2nd respondent requested the Managing Director of KEXCON to take immediate steps for providing 223 Security Guards on contract basis to KSRTC, at the earliest. The petitioner has also filed I.A.No.1 of 2019, seeking an order directing the 2nd respondent to appoint him as Guard Grade II (Ex-servicemen). 6. The 1st respondent KSRTC has filed a counter affidavit, opposing the reliefs sought for in this writ petition. In the counter affidavit, it is pointed out that the Division Bench of this Court in Kerala State Road Transport Corporation and another v. Soumya and others [ 2018 (4) KHC 816 ] held that KSRTC has to decide the number of employees that they want on their board and the manner in which they are to be controlled and modulated. Therefore, the 1st respondent would contend that though the Corporation has reported the vacancy in the post of Guard Grade-II (Ex-servicemen) to KPSC, the Corporation in its present situation is not in a position to appoint anyone to that post. The Corporation is facing severe financial crisis for the last so many years and the deficit in income and expenditure per month is to the tune of Rs.100 to 110 crores. Due to severe financial crisis the Corporation is not in a position to disburse monthly salary and other benefits to the employees. Non-payment of pension to retired employees has resulted in number of litigations before this Court. Considering the financial crisis faced by the Corporation, the State Government appointed Shi Suseel Khanna, a retired Professor from Indian Institute of Management, Calcutta to conduct a thorough study about the working of the Corporation and to suggest measures in order to revive the Corporation from its present economic crisis. The Committee has already submitted its interim report. Considering the financial crisis faced by the Corporation, the State Government appointed Shi Suseel Khanna, a retired Professor from Indian Institute of Management, Calcutta to conduct a thorough study about the working of the Corporation and to suggest measures in order to revive the Corporation from its present economic crisis. The Committee has already submitted its interim report. One of the main recommendations of the Committee is to reduce bus-staff ratio to the national average, in order to reduce expenditure. In such a situation, the Corporation finds it extremely difficult to disburse the monthly salary of the employees. Appointing fresh candidates will undoubtedly affect the very existence of the Corporation. Hence, the Corporation decided not to make any further appointment till Suseel Khanna Committee submits its final report to the State Government. Therefore, the Corporation is not in a position to report or make any fresh appointment to the post of Guard Grade-II (Ex-servicemen). 7. Along with I.A.No.4 of 2019, the petitioner has produced Ext.P5 Government Circular dated 07.11.2001, whereby all Heads of Departments/Appointing Authorities were once again directed to report all the existing vacancies to KPSC and fill up the vacancies earmarked for direct recruitment only by the candidates advised by KPSC. 8. Heard the learned counsel for the petitioner, the learned Standing Counsel for KSRTC and also the learned Standing Counsel for KPSC. 9. The learned counsel for the petitioner would contend that NCA vacancy in the post of Guard Grade-II (Exservicemen) notified in Ext.P1 has to be filled up from Ext.P2 ranked list in order to satisfy the rules of reservation and communal rotation. Therefore, non-filling up of the vacancy notified in Ext.P1 will result in imbalance, in terms of reservation turns. Without filling NCA vacancy on regular basis, KSRTC cannot go on with further selection. The vacancy is meant for Ex-servicemen, who evidently have a quota in the process of appointment. Therefore, denial of appointment to the petitioner will amount to denial of his right based on the protection for Ex-servicemen. Once the vacancy is reported to KPSC, the same cannot be cancelled subsequently or filled up through other means, as held by a Division Bench of this Court in K.Harindran v. State of Kerala and others [ILR 2006 (4) Ker. 680]. The learned counsel for the petitioner would place reliance on other decisions of the Apex Court and that of this Court. 10. 680]. The learned counsel for the petitioner would place reliance on other decisions of the Apex Court and that of this Court. 10. Per contra, the learned Standing Counsel for KSRTC would contend that the petitioner, who is a candidate included in Ext.P2 ranked list for NCA vacancy in the post of Guard Grade-II (Ex-servicemen) notified Ext.P1 notification, do not have an indefeasible right for appointment. On account of financial stringency, the Corporation decided not to make any fresh appointment until Suseel Khanna Committee submits its final report to the Government. Therefore, the Corporation is not in a position to make any fresh appointment in the NCA vacancy of Guard Grade-II (Ex-servicemen). The learned Standing Counsel would place reliance various decisions of the Apex Court and that of this Court. 11. It is not in dispute that the 1st respondent Corporation is facing financial crisis for the last several years, on account of fiscal deficit or gap between income and expenditure. The Corporation is not in a position to ensure timely disbursement of salary and other benefits to its employees and also pension to retired employees. Large number of pensioners have approached this Court by filing writ petitions, seeking time bound disbursement of monthly pension and terminal benefits. It is also not in dispute that, Suseel Khanna Committee appointed by the State Government to suggest measures to revive the Corporation from its present economic crisis submitted interim report, recommending reduction of bus-staff ratio to the national average, in order to reduce expenditure. 12. The vacancy in the post of Guard Grade-II (Exservicemen) notified in Ext.P1 notification is NCA vacancy for the community LC/AI. 13. Rule 14 of the Kerala State and Subordinate Service Rules, 1958 (KS&SSR) deals with reservation of appointments. As per Rule 14, where the Special Rules lay down that the principle of reservation of appointments shall apply to any service, class or category, or where in the case of any service, class or category for which no special rules have been issued, the Government have by notification in the Gazette declared that the principle of reservation of appointments shall apply to such service, class or category, appointments by direct recruitment to such service, class or category shall be made as enumerated in clauses (a) to (f) thereof. 14. 14. As per clause (a) of Rule 15 of KS&SSR, the integrated cycle combining the rotation in clause (c) of rule 14, and the sub-rotation in sub-rule (2) of rule 17 shall be as specified in the Annexure to Part II. Notwithstanding anything contained in any other provisions of KS&SSR or in the Special Rules if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities. If after re-notification, repeatedly for not less than two times, no suitable candidate is available for selection from the respective community or group of communities, the selection shall be made from available Other Backward Classes candidates. In the absence of Other Backward Classes candidates, the selection shall be made from available Scheduled Castes candidates and in their absence, the selection shall be made from available Scheduled Tribes candidates. 15. As per Explanation to clause (a) of Rule 15 of KS&SSR, one selection year for the purpose of this rule shall be the period from the date on which the rank list of candidates comes into force to the date on which it expires. As per Note to clause (a) of Rule 15, all pending uncompensated turn's of vacancies such as temporarily passed over (TPO), no candidate available (NCA) and non-joining duty (NJD) as on 02.02.2006, shall be compensated. 16. In view of the amended provisions of clause (a) of Rule 15 of KS&SSR, which came into force with effect from 02.02.2006, there cannot be a temporary pass over (TPO) if a suitable candidate is not available for selection from a particular community or group of communities, as provided earlier under the provisions of unamended Rule 15. The temporarily passed over (TPO), no candidate available (NCA) and non-joining duty (NJD) vacancy for one selection year, i.e., for the period from the date on which the rank list of candidates comes into force to the date on which it expires, will have to be notified separately for that community or group of communities. The temporarily passed over (TPO), no candidate available (NCA) and non-joining duty (NJD) vacancy for one selection year, i.e., for the period from the date on which the rank list of candidates comes into force to the date on which it expires, will have to be notified separately for that community or group of communities. As per the statutory mandate of clause (a) of Rule 15 of KS&SSR, the NCA vacancy in the post of Guard Grade-II (Ex-servicemen), for the community LC/AI, for the previous selection year, was kept unfilled and notified separately for that community, vide Ext.P1 notification for direct recruitment. 17. In the counter affidavit, the 1st respondent Corporation has no case that the vacancy notified in Ext.P1, in the post of Guard Grade-II (Ex-servicemen), for the community LC/AI, is not in existence. The contention of the 1st respondent is that, considering the financial crisis faced by the Corporation and also the recommendation of Suseel Khanna Committee to reduce bus-staff ratio to the national average, in order to reduce expenditure, it was decided not to make any further appointment till Suseel Khanna Committee submits its final report to the State Government. 18. As borne out from Ext.P4 letter dated 08.03.2019 of the 2nd respondent Managing Director of KSRTC, addressed to the Managing Director of KEXCON, 223 vacancies of Security Guards exist in various units of KSRTC. Vide Ext.P4 letter, the 2nd respondent requested the Managing Director of KEXCON to take immediate steps for providing 223 Security Guards, on contract basis, to KSRTC, at the earliest. Therefore, admittedly, 223 vacancies of Security Guards exist in various units of KSRTC, as on 08.03.2019. 19. In Asha Kaul v. State of Jammu and Kashmir [ (1993) 2 SCC 573 ], the Apex Court held that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment but that it only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Public Service Commission to select a particular number of candidates for particular category, in pursuance to which a Commission issues a notification, holds a written test, conducts interview, prepares a select list and then communicates to the Government, the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates, when they complain, that they have no legal right to appointment. 20. In Manager, RBI and others v. Krishnakumar and others [ 1994 (2) KLJ 892 ], a Division Bench of this Court held that simply because the Reserve Bank of India had notified certain number of vacancies and had prepared a select list of candidate to fill up those vacancies, the candidates do not acquire an indefeasible right to be appointed in the vacancies as anticipated by the Bank nor is the Reserve Bank of India under any legal obligation to fill up all the vacancies which it had anticipated at the time when it prepared the select list. However, the decision of the Reserve bank of India not to fill up the vacancies has to be taken as bonafide and for good administrative reasons. It cannot be an arbitrary decision. 21. In Batiarani Gramiya Bank v. Pallab Kumar and others [ (2004) 9 SCC 100 ], the Apex Court held that the respondents-writ petitioners had not acquired any indefeasible to be appointed to the post in question when the Bank had taken a decision not to fill up the vacancies which is based on sound bonafides and appropriate reasons. The Bank is also under no obligation or legal duty to fill up any or all of the vacancies and the basis indicated by the Bank for pruning down the intent cannot be characterised to be a malafies or unreasonable. If the Bank is forced to accommodate officers and Field Supervisors more than their required indent, it will have a crippling effect on the Bank and public interest will stand seriously prejudiced as several employees will have to be unnecessarily retained and public money will have to be expended on them. When public interest competes with private interest, the private interest will have to give way to public interest. 22. When public interest competes with private interest, the private interest will have to give way to public interest. 22. In State of U.P. v. Rajkumar Sharma [ (2006) 3 SCC 330 ], the Apex Court held that selectees cannot claim the appointment as a matter of right. Mere inclusion of candidate's name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the candidates concerned cannot claim that they have been given a hostile discrimination. [See: Shankarsan Dash v. Union of India [ (1991) 3 SCC 47 ]; Asha Kaul v. State of J&K [1993 SCC (L&S) 637]; Union of India v. S.S. Uppal [ AIR 1996 SC 2340 ]; Hanuman Prasad v. Union of India [ (1996) 10 SCC 742 ]; Bihar Public Service Commission v. State of Bihar [1997 SCC (L&S) 775]; Syndicate Bank v. Shankar Paul [ AIR 1997 SC 3091 ]; Vice Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra [ (1997) 10 SCC 264 ]; Punjab SEB v. Seema [1999 SCC (L&S) 629]; All India SC&ST Employees' Association v. A. Arthur Jeen [ AIR 2001 SC 1851 ]; Vinodan T. v. University of Calicut [ (2002) 4 SCC 726 ]; S. Renuka v. State of A.P. [2002 SCC (L&S) 689]; and Batiarani Gramiya Bank v. Pallab Kumar [ (2004) 9 SCC 100 ]. 23. In K.Harindran v. State of Kerala and others [2006 KHC 1634], a Division Bench of this Court held that when a vacancies are already reported to the Public Service Commission, that cannot, in any manner, be filled up, except as provided in Circular No.4441/ADV-C3-97-P & ARD dated 21.03.1997, which provides that once the vacancies are reported to the Public Service Commission, they should be neither be cancelled or reduced. The practice, if any, of filling the vacancies by promotion or by transfer after reporting the vacancies to the Commission to be discontinued. The Division Bench held that, in the light of the instructions in the aforesaid circular, filling up the post of LD Typist by promoting the appellant/writ petitioner was not justified. Such filling up can, at the best, be temporary. 24. The Division Bench held that, in the light of the instructions in the aforesaid circular, filling up the post of LD Typist by promoting the appellant/writ petitioner was not justified. Such filling up can, at the best, be temporary. 24. In Kerala State Road Transport Corporation and another v. Soumya and others [ 2018 (4) KHC 816 ], the challenge made before the Division Bench of this Court was the direction issued by the learned Single Judge directing KSRTC to report non-joining vacancies of Junior Assistants to the Kerala Public Service Commission and thereafter, ordering the Public Service Commission to advise candidates from the ranked list. The contention raised by KSRTC before the Division Bench was that the Corporation no longer require 209 numbers of Junior Assistants in their service since there are already 1024 Junior Assistants/Assistant in the Corporation, which presently operate only 6350 buses. They further contended that consequent to the merging of depots and comprehensive computarisation, added with the increase in the working hours, the Corporation do not require any further Junior Assistants in their service. When there was no requirement for the Corporation, the learned Single Judge ought not to have given an affirmative direction to appoint 209 person to this vacancies. 25. In Soumya's case, it was contended before the Division Bench, by the learned counsel for the rank holders, that the report of the Suseel Khanna Committee does not relate to ministerial staff but only to the staff operating on buses and therefore, the stand taken by KSRTC cannot be sustained. After referring to the aforesaid contention, the Division Bench observed that, it is for the KSRTC to decide the number of employees that they want on their board and the manner in which they are to be controlled and modulated. When KSRTC is vehement that they do not require these 209 posts and since they virtually take the position that these posts should be deemed to be abolished, the Division Bench found no reason why it should burden the Corporation with additional personnel, especially when, by doing so, it would perhaps cause prejudice than benefit to such additional personnel, including the respondents in the writ appeal, since there is a real chance that immediately after appointment, KSRTC would embark upon the procedure for retrenchment of non-requisite staff. 26. 26. In Kerala State Road Transport Corporation v. Akhilesh V.S. [ AIR 2019 SC 1663 ], the Apex Court held that mere existence of vacancies or empanelment in the ranked list does not create any indefeasible right to appointment. In the said decision, the Apex Court was dealing with recruitment to the post of Blacksmith Grade II in KSRTC. The sanctioned cadre strength of that post was 800, of which 395 vacancies were already filled by substantive appointments. The Corporation made a requisition for 405 vacancies to the Public Service Commission, which forwarded a recommendation with regard to 351 vacancies initially and later for another 6 posts, followed by 23 more against non-joining duty vacancies. Respondents 1 and 2 before the Apex Court were empanelled as Serial Nos.284 and 294 respectively in the ranked list. Appointments were made till rank No.278 only and ranked list expired on 21.10.2017. The respondents did not alleged discrimination or arbitrariness by violation of the ranked list in making appointments. This Court in judgment dated 10.01.2018 in W.A.No.2431 of 2017 opined that KSRTC was obliged to make appointments against the requisitioned vacancies including those that may have arisen subsequently, but during the life of the ranked list. 27. In Akhilesh's case, the question that came up for consideration before the Apex Court was whether mere empanelment can justify a mandamus to make appointments because the vacancies may exist. Another question was whether mandamus can be issued to make appointments from the panel on vacancies, which may have arisen subsequently due to superannuation, etc., during the life of the ranked list. The Apex Court noticed that the question assumes significance in view of the stand of the Corporation that it did not wish to make any further appointment due to a financial crunch and a skewed bus to passenger ratio, and for which purpose the Corporation had also appointed a Committee to recommend the remedial measures. After considering the rival contentions, the Apex Court opined that, the order of the Division Bench of this Court is unsustainable. The cadre strength has rightly be held not to be a relevant consideration. The High Court has erred in issuance of mandamus to fill up a total of 97 vacancies, including those arising subsequently, but during the life of the ranked list. The cadre strength has rightly be held not to be a relevant consideration. The High Court has erred in issuance of mandamus to fill up a total of 97 vacancies, including those arising subsequently, but during the life of the ranked list. Vacancies which may have arisen subsequently could not be clubbed with the earlier requisition and necessarily had to be part of another selection process. The law stands settled that mere existence of vacancies or empanelment does not create any indefeasible right to appointment. The employer also has the discretion not to fill up all the requisitioned vacancies, but which has to be valid and germane reasons not afflicted by arbitrariness. The appellant Corporation contends a financial crunch along with skewed staff-bus ratio, which are definitely valid and germane ground for not making any further appointments. The Court cannot substitute its views over that of the appellant Corporation much less issue a mandamus imposing obligations on the appellant Corporation, which it is unable to meet. 28. In Akhilesh's case, the Apex Court has also referred to the observation made in Kulwendrapal Sing v. State of Punjab [ (2016) 6 SCC 532 ], wherein the Apex Court quoted the law laid down in Manoj Manu v. Union of India [ (2013) 12 SCC 171 ] that, merely because of the name of the candidate finds a place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies, however such decisions should not be arbitrary or unreasonable. Once the decision is found to be a based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies. 29. In Antony Stejo J. and others v. State of Kerala and others [ 2019 (1) KHC 613 ], a Division Bench of this Court held that any substantive vacancies in the post of Conductor Grade II in the KSRTC after its ascertainment within time frame can only be filled up through Public Service Commission or by persons sponsored by Employment Exchange. The decision in KPSC Reserved Conductors Rank Holders Association and others v. State of Kerala [ 1996 (2) KLT 306 ] that when there are persons chosen by the Public Service Commission for being recruited to the post of conductor on regular basis, the provisional employees and the empanelled conductors have to vacate their posts for giving room to accommodate regular hands. 30. In the instant case, admittedly, 223 vacancies of Security Guards exist in various units of KSRTC, as on 08.03.2019, which is evident from Ext.P4 letter dated 08.03.2019 of the 2nd respondent Managing Director of KSRTC, addressed to the Managing Director of KEXCON. Vide Ext.P4 letter, the 2nd respondent requested the Managing Director of KEXCON to take immediate steps for providing 223 Security Guards, on contract basis, to KSRTC. 31. As already noticed, the vacancy of Guard Grade-II (Ex-servicemen) notified in Ext.P1 notification is NCA vacancy for the community LC/AI. As per the mandate of clause (a) of Rule 15 of KS&SSR, that vacancy which had arisen, on account of non-availability of suitable candidate in the concerned selection year, which is kept unfilled, shall be filled up by notifying separately for that community, by direct recruitment. When, admittedly, 223 vacancies of Security Guards exist in various units of KSRTC, as on 08.03.2019, there is absolutely no justification on the part of respondents 1 and 2 in not appointing the petitioner, who is a candidate advised by the 3rd respondent KPSC, vide Ext.P3 advice memo, in the post of Guard Grade -II (Ex-servicemen). 32. It is pertinent to note that the reservation in the matter of re-employment of Ex-servicemen provided by the State Government is to provide necessary facilities for the re-settlement of Ex-servicemen who have given the best part of their life for the safety and security of the nation; on noticing that almost all Ex-servicemen require help and assistance for re-settlement and that, they require a second career as they are young and active and their responsibilities and obligations are at the peak at the time when they retire from service at the age of 35 to 54 years, depending on their rank. Therefore, the benefits extended to Ex-servicemen under the relevant provisions providing reservation in the matter of re-employment requires implementation in letter and spirit. 33. Therefore, the benefits extended to Ex-servicemen under the relevant provisions providing reservation in the matter of re-employment requires implementation in letter and spirit. 33. Though it is contended by the 1st respondent that, the Corporation decided not to make any fresh appointment until Suseel Khanna Committee submit its final report to the Government, it is an admitted fact that 223 vacancies of Security Guards exist in various units of KSRTC. The Security Guards are deployed at various units of KSRTC and their requirement has absolutely no connection with the number of services/buses operated from that unit. In such circumstances, considering the fact that the advise of the petitioner vide Ext.P3 advice memo is against the NCA vacancy, which was kept unfilled during the previous selection year, this Court find no reason to justify the stand taken by the 1st respondent Corporation in not giving appointment to the petitioner in terms of that advice memo. It is pertinent to note that, pursuant to the directions issued by the Division Bench of this Court in Antony Stejo's case (supra), the 1st respondent Corporation has already made regular appointments in the substantive vacancies of Conductor Grade-II. In the result, this writ petition is disposed of by directing respondents 1 and 2 to appoint the petitioner as Guard Grade-II (Ex-servicemen) in terms of Ext.P3 advice memo issued by the 3rd respondent KPSC, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a certified copy of this judgment.