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2020 DIGILAW 837 (KER)

Kerala Public Service Commission v. Sheejamol

2020-10-07

A.M.SHAFFIQUE, GOPINATH P., SUNIL THOMAS

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ORDER : 1. This matter has been placed before the Full Bench upon reference by a Division Bench of this Court through an order dated 20.08.2018 in W.A. Nos. 1191 and 1740 of 2016 arising from the judgment dated 31.07.2015 in W.P. (C) No. 5881 of 2014. The facts may be briefly noticed. The writ petitioner was included in a ranked list for the post of Clerk-cum-Cashier in various District Co-operative Banks. She was included in Part I of the list as Rank No. 57 (the list was prepared in 2 parts since the selection was from 2 different sources). The candidates up to Rank No. 56 in Part I of the list were advised for appointment by the Kerala Public Service Commission taking into consideration the vacancies reported by various District Co-operative Banks. It appears that the person at Rank No. 54 did not join duty as a result of which there was a Non-Joining Duty (NJD) vacancy in the Ernakulam District Co-operative Bank (the ‘Bank’). Thereupon the writ petitioner filed W.P. (C) No. 5881/2014 in which an interim order was issued on 29.5.2014 directing the Bank to report the Non-Joining Duty vacancy before 30.06.2014, on which date, it is not disputed, the ranked list expired. There is considerable controversy at the bar as to whether the Bank had complied with the interim direction. While the Bank would take the stand that the order had been complied with, by informing the Commission that a candidate at Rank No. 54 of the list had not joined duty, the Public Service Commission would take the stand that there was no reporting of the NJD vacancy in the prescribed proforma which was mandatory in terms of a Government Order namely, G.O. (P) No. 38/1992/P&ARD dated 18.9.1992. 2. The Writ Petition was finally disposed of by judgment dated 31.7.2015, by which date the ranked list had already expired. As can be seen from the judgment of the learned single Judge, the Bank took up a contention that it could not fill up the vacancy in question on account of the changes in staff pattern as a consequence of the downgrading of the bank by the regulatory authorities under the Kerala Co-operative Societies Act. As can be seen from the judgment of the learned single Judge, the Bank took up a contention that it could not fill up the vacancy in question on account of the changes in staff pattern as a consequence of the downgrading of the bank by the regulatory authorities under the Kerala Co-operative Societies Act. The learned Single Judge, on a consideration of the matter, found, on facts, that no direction could be issued to appoint a person in a particular vacancy if, the employer had for bona fide reasons (as in this case) decided that the vacancy should not be or cannot be filled up. The learned Single Judge noticed that the Bank did not intend to take any stand regarding the inability to appoint the Writ Petitioner on the ground that the list had expired. It was found that since the candidate at Rank No. 54 had not joined, a direction could be issued to appoint the writ petitioner to the next arising vacancy. This was to be done, if the position of the Bank improves with time, by treating the writ petitioner to be in the ranked list that may be prepared subsequently by the Kerala Public Service Commission. The Kerala Public Service Commission, therefore, filed W.A. No. 1191/2016 while the Bank filed W.A. No. 1740/2016 challenging the judgment of the learned single Judge. 3. The reference is on account of the fact that the Division Bench was of the opinion that the judgment of a Division Bench of this Court in Public Service Commission vs. Govindan, 2000 (1) KLT 33 to the extent it holds that this Court cannot issue orders directing the Public Service Commission to advise candidates from an expired ranked list, even if an interim direction had been issued earlier to report certain specific vacancies was, possibly, a departure from the view taken by a Full Bench of this Court in State of Kerala vs. Sreekandan, 1993 (1) KLT 107 . The reference order also notices that that the petition seeking the review of the judgment in Sreekandan (supra) was dismissed (vide the judgment reported as Vimalakumari vs. State, 1994 (2) KLT 47 (FB). The reference order also notices that that the petition seeking the review of the judgment in Sreekandan (supra) was dismissed (vide the judgment reported as Vimalakumari vs. State, 1994 (2) KLT 47 (FB). We must notice straight away that nothing turns on the rejection of the Review Petition on account of the fact that the review was sought by candidates who were included in the ranked list in question in that case, on two specific grounds: (i) that the view taken by the Full Bench that the ranked list having expired there was no question of directing the Public Service Commission to advise candidates, does not lay down the correct position in law and (ii) that relief had been granted by the Full Bench to persons who had not filed any Original Petition before the Court. Therefore, the dismissal of the Review Petition really does not have a bearing on the issue to be decided. As already noticed, reading the judgment in Govindan (supra), the Division Bench, in the reference order, perceived a departure from the view expressed in Sreekandan (supra). However, it appears to us that both these judgments declared, in no uncertain terms, that no direction can be given to advise candidates from an expired ranked list. In Sreekandan (supra), it was held “The ranked list having expired, the question of directing the Public Service Commission to advise the petitioners does not arise.” However we must note that in Sreekandan (supra) this Court proceeded to direct the appointing authority (State of Kerala in that case) to appoint four persons mentioned in paragraph 12 of the judgment after noticing that an interim order to report 7 vacancies had only been partly complied with by reporting 3 vacancies. Sreekandan (supra) having been rendered by a Full Bench is binding on us, unless we were to take the view that the ratio of Sreekandan (supra) requires reconsideration by a larger Bench. 4. The Division Bench, in the reference order dated 20.08.2018, was of the opinion that the failure of an appointing authority to report a vacancy or vacancies, in spite of specific directions issued by this Court, within the validity of the ranked list, and a contention being taken thereafter that the ranked list has expired would lead to devastation of justice and further that this will lead to loss of faith in the judicial system. It was in the light of this specific finding that the Division Bench opined that the judgment in Govindan (supra) requires to be reconsidered. 5. We have heard Sri. P.C. Sasidharan, learned Counsel appearing for the appellant in W.A. No. 1191/2016, Sri. N. Raghuraj, learned counsel appearing for the appellant in W.A. No. 1740/2016 and Sri. Kaleeswaram Raj, learned counsel appearing for the 1st respondent in these appeals (the writ petitioner). 6. The learned counsel appearing for the Kerala Public Service Commission would refer to the judgments in Sreekandan (supra), Balakrishnan vs. PSC, 1994 (1) KLT 490 (DB), Vimalakumari (supra), Govindan (supra), Kerala Public Service Commission vs. Shanil Kumar, 2002 (1) KLT 604 , S.S. Balu and Another vs. State of Kerala and Others, (2009) 2 SCC 479 and Subina vs. State of Kerala, 2019 (3) KLT 735 and the provisions of the Public Service Commission Rules of Procedure, 1976 (Kerala) to contend that there is no question of advising a candidate from a ranked list that has expired. He would contend that the direction given by the Full Bench in Sreekandan (supra) was on account of the peculiar situation in that case and it can be treated only as the exercise of extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India to direct the appointment of candidates de hors the normal provisions in the Rules by invoking Rule 39 of Part II of the Kerala State and Subordinate Service Rules, 1958. He would specifically point out to the fact that all the judgments, which have considered the question regarding advice from an expired ranked list, referred to above, have taken the view that the Court cannot direct the advice of any candidate from an expired ranked list. He would further contend that mere inclusion in the ranked list does not give the candidate any vested right to claim appointment. He would also contend that the view taken in Govindan (supra) is completely in tune with the law laid down by the Full Bench in Sreekandan (supra), though reference was not made to that judgment and therefore that there was no reason to revisit the law laid down in Govindan (supra). He would also contend with reference to the judgment of this Court in Sreekandan Nair vs. Muraleedharan Nair, 1991 Lab. He would also contend with reference to the judgment of this Court in Sreekandan Nair vs. Muraleedharan Nair, 1991 Lab. I.C. 2163, that there was public interest in defining the life of a ranked list in as much as newly qualified candidates should also get a chance to compete for appointment and all vacancies which arise either prior to or after the publication of a ranked list cannot be monopolised by candidates in a particular list contending that the said list must be operated till the last candidate is appointed. He would with reference to the facts of the present case point out that the notification inviting applications for the post of Clerk-cum-Cashier in District Co-operative Banks was issued on 24.4.2006. The ranked list was published on 31.12.2009 and had expired on 30.6.2014 following extension of its validity by the Public Service Commission. A reference to these dates, he would submit, show that if the ranked list was not to expire with a specific time limit, several candidates, who would acquire the qualification after the last date prescribed in the relevant notification, would not get a chance of employment or even a chance to compete for public employment for years together. He would state that a Division Bench of this Court in Sreekandan Nair vs. Muraleedharan Nair (supra) elaborately considered this issue and had specifically found that it would be unjust and unreasonable and violative of the guarantee of equality of opportunity under Arts. 14 and 16 of the Constitution of India to keep a ranked list in operation for perpetuity. The learned counsel appearing for the appellant in W.A. No. 1714/2016 would support the contentions of the learned standing Counsel for the Public Service Commission and would assert that an employer may, for good and sufficient reasons, take a decision not to fill up a particular vacancy/vacancies and merely because an interim order had been given to report a particular vacancy, the employer cannot be compelled to appoint persons against such vacancy. 7. Per contra the learned counsel appearing for the contesting respondent (the writ petitioner) would contend that the Division Bench of this Court in Govindan (supra) had clearly ignored the binding precedent of Sreekandan (supra) and had taken a wrong view without reference to that judgment. 7. Per contra the learned counsel appearing for the contesting respondent (the writ petitioner) would contend that the Division Bench of this Court in Govindan (supra) had clearly ignored the binding precedent of Sreekandan (supra) and had taken a wrong view without reference to that judgment. He would also contend that the majesty of the Court should not be belittled by a failure to comply with its interim order and a contention taken later that the order was incapable of compliance on account of the fact that the ranked list in question had expired should not be countenanced. He would also point out that the concern expressed in the reference order following which this matter is placed before the Full Bench is the consequence of failure to comply with an interim order/final order of this Court to report certain vacancies before the expiry of a ranked list. He would urge that we must consider and answer this issue alone. He would also support the view taken by the learned single Judge. 8. In view of the questions arising from the order of reference and the contentions raised before us, the following issues are framed for consideration:- (i) Is the failure of an appointing authority to comply with an interim direction issued by this Court to report specific vacancies before the expiry of the ranked list, a ground to pass a final order directing the appointing authority to fill up vacancies from the ranked list which has, by passage of time, expired? (ii) If the answer to the aforesaid is in the affirmative, what are the circumstances in which such an order would be passed as in Sreekandan (supra) directing the appointing authority to fill up specific vacancies from the ranked list which has expired? (iii) Can this Court be approached to compel an appointing authority to fill up vacancies from a ranked list prepared by the Public Service Commission even if the appointing authority/employer does not intend to fill up that particular vacancy/vacancies for genuine and bona fide reasons? (iii) Can this Court be approached to compel an appointing authority to fill up vacancies from a ranked list prepared by the Public Service Commission even if the appointing authority/employer does not intend to fill up that particular vacancy/vacancies for genuine and bona fide reasons? (This issue arises on account of the fact that in the facts of the cases placed before us, the appointing authority (the Ernakulam District Co-operative Bank Limited) took up the specific contention that they did not intend to fill up the vacancy in question on account of certain orders issued by the regulatory authorities under the Co-operative Societies Act downgrading their status as a result of which there was a reduction in the number of posts to be filled up). 9. We have bestowed our anxious attention to the contentions raised by both sides and answer the issues framed and the reference in the following manner:- Issues (I) & (II) 10. These issues can be conveniently considered together. The question as to whether this Court will direct vacancies to be filled up from a ranked list prepared by the Public Service Commission, after its validity has expired, is no longer res integra. Sreekandan (supra) held that this was not possible, and this view got reiterated when the petition seeking review was dismissed through Vimalakumari (supra). This view appears to have been consistently followed by different benches of this Court sitting in Division. (Balakrishnan vs. PSC, Public Service Commission vs. Govindan and Kerala Public Service Commission vs. Shanil Kumar which have been referred to above). We are therefore of the view that there can be no direction issued to advise candidates from a ranked list which has expired in terms of the provisions contained in the Rules of Procedure framed by the Kerala Public Service Commission. We are also fortified in taking this view in the light of the recent judgment of the Supreme Court in Aneesh Kumar V.S. and Others vs. State of Kerala, 2020 SCC Online SC 398 dismissing the Civil Appeal filed challenging the Full Bench judgment of this Court in Aneesh K.P. and Others vs. State of Kerala, 2019 (1) KLT 896 (FB). It was held:- “27. The Full Bench also took notice of the fact that the vacancies were reported after a gap of more than eight months on 12.7.2016 and that the last (third) advice was made on 11.11.2015. It was held:- “27. The Full Bench also took notice of the fact that the vacancies were reported after a gap of more than eight months on 12.7.2016 and that the last (third) advice was made on 11.11.2015. The Full Bench taking notice of the settled legal position, as expounded in S.S. Balu (supra), Kerala Public Service Commission vs. Shanil Kumar, Lal Sudheer vs. Kerala State Road Transport Corporation, Secretary, Kerala Public Service Commission vs. Sheeja P.R. and Nair Service Society vs. District Officer, Kerala Public Service Commission, went on to hold that by now it is well established that the Commission (KPSC) cannot advise any candidate after the expiry of a Ranked List, even to an NJD vacancy, if such vacancies are reported after the expiry of the list in question. We agree with this opinion of the Full Bench.” (Emphasis is ours) 11. Then the question is whether the fact that a direction had been issued by this Court to the appointing authority concerned before the expiry and during the validity of the ranked list, to report vacancies to the Public Service Commission should result, as in Sreekandan, a direction to the appointing authority to fill up those vacancies following the ranking in the ranked list which has expired, on the premise that the failure of the appointing authority to comply with such direction, justifies it. Our reading of Sreekandan (supra) does not lead us to conclude that such a direction must necessarily follow. It is true that in Sreekandan (supra) a direction was issued to the appointing authority (the State of Kerala in that case) to appoint four candidates who would have been appointed had all the vacancies been reported pursuant to the interim order referred to in the judgment. Such direction was issued despite the fact that the ranked list had expired. However, we do not see any principle of law of universal application as having been laid down in Sreekandan (supra) that such a direction must follow in every case where there is a failure to report vacancies in spite of a specific direction. This is not to say that the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India would not extend to the issuance of such directions if circumstances warrant such directions being issued. We cannot lay down any parameters for the exercise of such jurisdiction. This is not to say that the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India would not extend to the issuance of such directions if circumstances warrant such directions being issued. We cannot lay down any parameters for the exercise of such jurisdiction. Whether or not such directions need be issued will depend to a great extent on the facts and circumstances of each individual case. We hold that a direction as given in Sreekandan (supra) will be issued only in exceptional cases and in the rarest of situations where this Court comes to the conclusion, on final adjudication of the lis, that the appointing authority had purposefully and with mala-fide intentions failed to comply with the directions issued by this Court. We are also of the opinion that the direction issued in Sreekandan (supra) was not on account of the existence of Rule 39 of Part II of the Kerala State & Subordinate Service Rules, 1958 and that even in the absence of a similar Rule (in cases where the said Rule has no application) this/Court can, if circumstances warrant, issue similar directions. Issue No. III 12. We are now called upon to consider the third issue i.e. whether the existence of vacancies and the existence of a valid ranked list would require the employer (the appointing authority) to fill up those vacancies before the expiry of the ranked list either on account of the fact that a direction had been issued by the Court/Tribunal to report vacancies or otherwise. We would think not. The question as to whether a particular vacancy or vacancies should be filled up is a matter to be considered by the appointing authority. If for any reasonable and bona fide reasons, including the financial situation of the appointing authority, such authority takes the position that the vacancies in question need not be filled up it would not be proper for this Court to thrust upon the unwilling employer (appointing authority) candidates included in a ranked list for it is settled law that mere inclusion in a ranked list does not give to the candidates in question a vested right to appointment. The law on this point is settled by the judgment of a Constitution Bench of the Supreme Court in Shankarsan Dash vs. Union of India, (1991) 3 SCC 47 and we do not see any other judgment which has watered down this principle. The opening paragraph of that judgment reads thus:- “This appeal was earlier heard by a Division Bench and was referred to a Constitution Bench for examining the question whether a candidate whose name appears in the merit list on the basis of a competitive examination, acquires indefeasible right of appointment as a government servant if a vacancy exists. Reference was made to the decisions in State of Haryana vs. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 , Neelima Shangla vs. State of Haryana, (1986) 4 SCC 268 : 1986 SCC (L&S) 759 and Jatinder Kumar vs. State of Punjab, (1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 .” Considering the question, it was held (Paragraph 7 of SCC) “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana vs. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 , Neelima Shangla vs. State of Haryana, (1986) 4 SCC 268 : 1986 SCC (L&S) 759 and Jatinder Kumar vs. State of Punjab, (1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 .” Thus the fact that there are vacancies in existence in a particular cadre in Government or in any organization and the fact that there is a valid list prepared by the Public Service Commission or any other agency (in cases where consultation with the Public Service Commission is not mandated either in terms of the Constitution or any other law) is no ground for a Court to direct the filling up of such vacancies. 13. We therefore answer the reference in the following manner:- (i) The judgment in Public Service Commission vs. Govindan (supra) does not require reconsideration. The judgment conforms in every respect to the law laid down by the Full Bench of this Court in State of Kerala vs. Sreekandan (supra). If this Court were to conclude on final adjudication of the lis that a particular appointing authority has purposefully and with mala-fide intentions refused to comply with interim directions issued to report certain vacancies before the expiry of the ranked list then, this Court on consideration of individual facts and in the rarest of rare situations may direct appointment of candidates included in the ranked list which has expired, as was done in Sreekandan. (ii) An appointing authority may, for good and sufficient reasons, take a decision not to fill up existing vacancies and merely on account of the fact that there is a ranked list in force, this Court will not, in exercise of its jurisdiction under Art. 226 of the Constitution of India, compel the appointing authority to fill up those vacancies. (ii) An appointing authority may, for good and sufficient reasons, take a decision not to fill up existing vacancies and merely on account of the fact that there is a ranked list in force, this Court will not, in exercise of its jurisdiction under Art. 226 of the Constitution of India, compel the appointing authority to fill up those vacancies. Circumstances such as financial difficulties, or as in the facts of these cases, orders of statutory authorities resulting in reduction of the number of vacancies or abolition of posts etc. would be good and sufficient reason for the appointing authority to take a decision not to fill up the vacancies. 14. Having answered the reference, we direct the Registry to place these Writ Appeals before the appropriate Bench for disposal.