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2022 DIGILAW 16 (KER)

Arshitha P. D/o Kadan P. v. State of Kerala

2022-01-05

ALEXANDER THOMAS, VIJU ABRAHAM

body2022
JUDGMENT : ALEXANDER THOMAS, J. 1. The petitioners herein have filed the instant Ext.P1 original application, O.A. (Ekm) No. 1977/2021 before the Kerala Administrative Tribunal, Ernakulam Bench, with the following prayers: “(i) To direct the 3rd respondent to report all the substantive vacancies including the 91 vacancies shown in Annexure A2 in the post of U.P. School Assistant (Malayalam Medium) in Wayanad district to the 6th respondent before the expiry of Annexure A1 ranked list. (ii) To direct the 6th respondent to issue advice memos against the vacancies of U.P. School Assistant (Malayalam Medium) in Wayanad district, so reported by the 3rd respondent. (iii) To direct the 4th respondent to finalise the staff fixation for the academic years 2020-212 and 2021-22 in the post of U.P. School Assistant (Malayalam Medium) in Wayanad district. (iv) To direct the 3rd respondent to issue appointment orders to the applicants in the post of U.P.S.A. (Malayalam Medium) in Wayanad district immediately on the PSC advising them. (v) To grant such other reliefs as this Hon’ble Tribunal may deem fit and proper in the circumstances of the case. (vi) To allow the application with costs.” 2. The interim relief sought for by the petitioners in the above Ext.P1 original application is as follows: “............to direct the 3rd respondent to provisionally report all the substantive vacancies including the 91 vacancies in the post of U.P. School Assistant (Malayalam Medium) in Wayanad district to the 6th respondent so that the report reaches the 6th respondent on or before 05.01.2022.” 3. The Tribunal, after hearing both sides, has rendered the impugned Ext.P2 common interim order dated 03.01.2022 in the instant O.A. (Ekm) No. 1977/2021 as well as in a companion matter in O.A. (Ekm) No. 1667/2021, and has noted that already 187 appointments have been made to the post of Upper Primary School Teacher (Malayalam) [UPST (Malayalam)] in Wayanad District and various other vacancies have also been reported and that the department has also stated that urgent steps are being taken to report 7 more anticipated vacancies for the year 2022 to the PSC, etc. Thereafter, the Tribunal has held that no material has been produced in the original applications to enable the Tribunal to come to atleast a prima-facie conclusion that there exists more substantive vacancies in the direct recruitment quota in the post of UPST (Malayalam), Wayanad District and that, in the absence of such materials, the Tribunal has not been in a position to rebut the consistent stand of the department that no further substantive vacancies are available for being reported to the Kerala Public Service Commission (KPSC) and therefore held that the prayer for interim relief to direct the respondent appointing authority to report 91 more vacancies, allegedly pointed out in Anx.A2 tabular chart prepared by the applicants, are not tenable and hence the interim prayer cannot be granted and has accordingly rejected the plea for interim relief. 4. It is this impugned interim order at Ext.P2 rendered by the Tribunal on 03.01.2022, rejecting the plea for provisionally reporting of 91 more vacancies, in the abovesaid post that is under challenge in the present original petition filed under Articles 226 and 227 of the Constitution of India at the instance of the original applicants in O.A. (Ekm) No. 1977/2021. The prayers in the instant original petition are as follows: “(i) To allow this O.P. (KAT) and to set aside Exhibit P2 order dated 03.01.2022 in O.A. EKM No. 1977/2021 and to grant the interim relief as sought for in O.A. EKM No. 1977/2021. (ii) And to issue such other order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 5. Heard Sri. Kaleeswaram Raj, learned counsel appearing for the petitioners in the OP/applicants in the O.A. Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 1 to 4 in the OP/respondents 1 to 4 in the O.A. and Sri. P.C. Sasidharan, learned Standing Counsel for the Kerala Public Service Commission appearing for respondents 5 and 6 in the OP/respondents 5 and 6 in the O.A. 6. Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 1 to 4 in the OP/respondents 1 to 4 in the O.A. and Sri. P.C. Sasidharan, learned Standing Counsel for the Kerala Public Service Commission appearing for respondents 5 and 6 in the OP/respondents 5 and 6 in the O.A. 6. The case set up by the original applicants in the instant Ext.P.1 O.A. as well as in the instant original petition is broadly as follows: That, pursuant to the selection notification issued by the respondent Kerala Public Service Commission for selection to the post of Upper Primary School Assistant (Malayalam Medium) [UPSA (Malayalam Medium)] in Wayanad District, the petitioners herein have responded to the said selection notification and submitted their applications and that after the due process of selection, the rank list was finalised and published by the Kerala Public Service Commission as per Anx.A1, for the said Category No. 386/2014 for the post of UPSA (Malayalam Medium) in Wayanad District with effect from 07.01.2019. That, the 7 petitioners herein/7 applicants in the O.A. are duly included as Rank No. 264 in the main list, Rank No. 2 in the Supplementary List for Muslim community, Rank No. 228 in the main list, Rank No. 255 in the main list, Rank No. 21 in the Supplementary List for Scheduled Castes, Rank No. 236 in the main list and Rank No. 208 in the main list of Anx.A1 Rank list dated 07.01.2019. Further that, going by the mandate of the operative portion of Rule 13 of the Kerala Public Service Commission (Rules of Procedure), the validity period of Anx.A1 rank list is to expire on 06.01.2022. That, though some vacancies have been duly reported by the appointing authority to the respondent Kerala Public Service Commission, for advice and appointment of candidates included in Anx.A1 rank list, very many vacancies have not been reported by the respondent appointing authority to the respondent Kerala Public Service Commission. That, though some vacancies have been duly reported by the appointing authority to the respondent Kerala Public Service Commission, for advice and appointment of candidates included in Anx.A1 rank list, very many vacancies have not been reported by the respondent appointing authority to the respondent Kerala Public Service Commission. Further that, the petitioners on inquiry, could find out that due to COVID-19 Pandemic issues the staff fixation for the previous academic year 2020-21 and the present academic year 2021-22 have not been finalised by the departmental authorities in accordance with the provisions contained in the Kerala Education Rules and the Government norms in that regard and that once the staff fixation is finalised, for the abovesaid two respective academic years, then the same would take be effective from 15.07.2020 for the academic year 2020-21 and with effect from 15.07.2021 for the academic year 2021-22, respectively. That, the duly prescribed ratio of teacher-student strength, for determining the number of posts as per the staff fixation orders in Government schools and Aided schools is 1:25, which is in vogue even now and that if the teacher-student strength is reckoned on the basis of 1:25 ratio, then very many substantive vacancies will actually arise, with effect from 15.07.2020 and 15.07.2021, respectively for the abovesaid two academic years in question and that these are, in fact, physically available vacancies, at least since 15.07.2021 and since the rank list which is current upto 06.01.2022, those vacancies are also to be reported by the appointing authority to the Kerala Public Service Commission and to enable the latter to advise candidates included in Anx.A1 rank list, going by the mandate contained in Rule 14 of the Kerala Public Service Commission (Rules of Procedure). Further that, the petitioners, through their own effort have got certain factual details and have prepared a tabular column as per Anx.A2 series given on internal pages 19 to 22 of Ext.P1 O.A. (see pages 35 to 38 of the paper book of this O.P.) and the said position would show that the vacancy that will arise through staff fixation process as well as vacancies, if any, on account of promotion/by-transfer to the higher category post of UPST as High School Teachers (HST) and Higher Secondary School Teachers (HSST), and also vacancies that arise through inter district transfer process, etc., for 26 schools in Bathery Sub-district, 20 schools in Vythiri Sub-district, 17 schools in Mananthavady Subdistrict of Wayanad Educational District, in respect of the post of UPSA (Malayalam Medium). According to the petitioners, going by the details given in Anx.A2 tabular chart prepared by them, there should be atleast 91 more vacancies, in addition to the present vacancies, which would be substantively in existence with effect from atleast 15.07.2021 on account of the staff fixation process for the academic year 2021-22, if finalised within time and that even if the staff fixation process is finalised after the validity period of Anx.A1 rank list, the same would take effect from 15.07.2021 and that therefore these are all substantive vacancies in the post of UPSA which are available for direct recruitment, etc. The Tribunal has dismissed the plea for interim relief to report 91 more vacancies mentioned in Anx.A2 chart, for the reasons stated hereinabove. It is this interim verdict of the Tribunal that is under challenge in the present original petition. 7. We have heard both sides in-extenso. 8. Sri. Kaleeswaram Raj, learned counsel appearing for the petitioners in the OP/applicants in the O.A. would strongly contend that the full details of the actual substantive vacancies available if the staff fixation process was properly done, are only with the department and that through various consistent and diligent efforts the petitioners were able to gather very many factual details of the 3 Education Sub Districts comprised in Wayanad Education District which are shown in Anx.A2 chart and have found that not less than 91 vacancies, substantive in nature should have been available at least as on 15.07.2021, apart from the various vacancies already reported by the appointing authority to the PSC. Further that, the rank list is to expire on 06.01.2022 and therefore, in order to protect the interests of both sides, the Tribunal should have issued a positive interim order directing the appointing authority to report 91 more vacancies of UPSA (Malayalam Medium) in Wayanad District to the respondent PSC, with the rider that those vacancies may not be utilised for advice without orders from the Court and the Tribunal should have easily adjudicated the matter as to whether the vacancies were substantive or not at the appropriate time and rendered a verdict as to whether any directive would lie to the PSC and the appointing authority to treat those vacancies as substantive and if so, how many of the said vacancies and then as to whether or not any consequential directions were to be issued to the PSC and to the appointing authority to issue advice memos and appointment orders respectively as against such specified number of vacancies that may be judicially determined by the Tribunal. That, if such a course of action is not taken by the Tribunal, it would present a fait accompli, inasmuch as it is well settled by a series of rulings of this Court as well as the Apex Court, more particularly by the Full Bench of this Court in its decisions as in Kerala Public Service Commission vs. Sheejamol, 2020 (5) KLT 718 (FB), that if vacancies are not reported before the expiry of the rank list, then no directions can be issued, even by the Court exercising judicial review, so as to direct the appointing authority to report vacancies after the expiry of the rank list and the consequential directions to the PSC to issue advice memos to candidates included in the rank list in question, inasmuch as vacancies should have been reported to the PSC by the appointing authority, atleast during the currency of the rank list. Otherwise, no advice memos can be issued as against the vacancies reported subsequent to the currency of the rank list so as to advise candidates from such time expired rank list. Otherwise, no advice memos can be issued as against the vacancies reported subsequent to the currency of the rank list so as to advise candidates from such time expired rank list. But whereas, if vacancies are atleast provisionally reported by the appointing authority before the expiry of the validity period of the rank list, then the adjudication process, for finally determining the issues as mentioned hereinabove, can be easily done by the Tribunal and if it is found that no substantive vacancies are available, then the Tribunal can even order that the provisional reporting of vacancies should be treated as cancelled or in the alternative, if the Tribunal finds that the actual number of substantive vacancies available as against the vacancies so provisionally reported is less than the vacancies so reported, then directive should be issued so as to advise the candidates and to appoint candidates from the rank list as against such limited specified vacancies, which are judicially determined to be substantive in nature. 9. The learned Senior Government Pleader has opposed the abovesaid plea of the petitioners and has held that the Tribunal has proceeded on the right lines, to dismiss the plea for interim relief, more so particularly, taking into account the ratio-decidendi of the decision recently rendered by a three Bench the Apex Court in the Civil Appeal arising out S.L.P. (Civil) Nos. 24214-24221 of 2019, filed by the State authorities, in the case in Director of Indian System of Medicine and Another vs. Dr. Susmi C.T. and Another, (2021) SCC Online SC 1188. Further that, there are no credible and reliable materials produced by the petitioners before the Tribunal to even remotely suggest that the 91 vacancies have been determined by them in a correct and proper manner and no factual details are given as to how these vacancies have been so computed by the petitioners, etc. Further that, there are no credible and reliable materials produced by the petitioners before the Tribunal to even remotely suggest that the 91 vacancies have been determined by them in a correct and proper manner and no factual details are given as to how these vacancies have been so computed by the petitioners, etc. Further that, the Tribunal has also found in the impugned order at Ext.P2 that already 187 appointments have been made in respect of the post of UPSA (Malayalam Medium) in Wayanad District and out of the remaining 13 vacancies, which were in existence, as on 02.11.2021, 4 vacancies have already been reported to the PSC and appointments will be made as and when the PSC issues advise memos as against those vacancies and also that the remaining 9 vacancies have been set apart for different quotas stipulated as per the mandatory requirements like promotion, inter-district transfer, NCA vacancies, compassionate appointments etc. and that these details have already been given in the reply statement filed by the Deputy Director of Education (appointing authority) in the connected matter in O.A. (Ekm) No. 1667/2021. Further that, steps have also been taken to report vacancies which arose due to promotions effected as Head Masters in Primary Section in the year 2021-22 and that steps have been taken to report 7 anticipated vacancies to the PSC and that all such available vacancies which arise before the expiry of Anx.A1 rank list on 06.01.2022, etc. A copy of the abovesaid reply statement filed in November, 2021 by the respondent appointing authority in O.A. (Ekm) No. 1667/2021 has been made available to us for perusal by the learned Senior Government Pleader (the contents of which have already been noted in Para No. 3 of Ext.P2 order of the Tribunal). Para Nos. 3 to 7 of the said reply statement reads as follows: “3. The ranked list for the post of UPST (Malayalam) in Wayanad district came into force on 07.01.2019. As on 03.11.2021, 187 appointment order have been issued. There are 13 vacancies of UPST (Malayalam) as on 02.11.2021. Out of the said 13 vacancies, 4 vacancies were reported to the Public Service Commission for advice. Appointment will be issued as and when the PSC issue advice to the candidates. 9 vacancies are set apart in the following manner observing the mandatory ratio. 1. There are 13 vacancies of UPST (Malayalam) as on 02.11.2021. Out of the said 13 vacancies, 4 vacancies were reported to the Public Service Commission for advice. Appointment will be issued as and when the PSC issue advice to the candidates. 9 vacancies are set apart in the following manner observing the mandatory ratio. 1. Compassionate employment for the period 2019-20 1 NCA vacancy 4 (DA Turn 2, Hindu Nadar-1, DAHI-1) Inter district transfer for the year 2021-22 4 4. Proceedings are being initiated to report the vacancy which arose due to promotion of primary headmaster in the year 2021-2022. 5. Steps are also being taken to report the 7 anticipated vacancies for the year 2022 to the PSC. 6. It is respectfully submitted the vacancies which would arise consequent to staff fixation only after receiving orders from Government. 7. All necessary steps are taken for reporting of UPST (Malayalam) in Wayanad District before the expiry of rank list on 06.01.2022.” 10. Further, the learned Senior Government Pleader submitted that, though the present original petition was moved as a today motion yesterday (04.01.2022), he could secure some additional written instructions from the appointing authority about certain subsequent developments and that 9 more vacancies (which appears to be inclusive of the 7 vacancies mentioned in Para 3 of Ext.P2 order) and 7 more vacancies have been reported by the appointing authority to the PSC on 27.12.2021 and further that a report has been made available, on 04.01.2022, for reporting 5 more vacancies and requisition in that regard will also be sent for those 5 vacancies by the appointing authority to the PSC, well before the expiry of the rank list on 06.01.2022, etc. and that no further substantive vacancies are available for being reported by the appointing authority to the PSC. That the present factual instructions submitted by the appointing authority is that altogether about 209 vacancies have been reported during the currency of the Anx.A1 rank list and advices of candidates have also been made from the said rank list, etc. and that any direction that may be issued by this Court, without adequate materials to rebut the abovesaid material pleas of the respondent appointing authority, would not be right and proper exercise of the powers in judicial review and that the Tribunal is fully justified in dismissing the plea for interim relief, etc. 11. and that any direction that may be issued by this Court, without adequate materials to rebut the abovesaid material pleas of the respondent appointing authority, would not be right and proper exercise of the powers in judicial review and that the Tribunal is fully justified in dismissing the plea for interim relief, etc. 11. After hearing both sides, the main contention raised by the petitioners is regarding the reporting of 91 more additional vacancies on the basis of Anx.A2 tabular chart prepared by them. It is not as if minimum number of vacancies alone have been reported by the appointing authority so far. Very many vacancies have already been reported by the appointing authority and candidates have also been duly advised from Anx.A1 rank list. 12. Further, after meticulously perusing the pleadings and materials on record, we find that Anx.A2 is a tabular chart prepared by the petitioners themselves. 13. No factual details, except the mere assertions in Anx.A2 tabular columns that the vacancies mentioned therein are existing either through staff fixation process or on the basis of promotion to HST/HSST or through inter-district transfer process, etc. have been given to show how these vacancies have been reckoned or computed by the petitioners. 14. Of course, Sri. Kaleeswaram Raj, learned counsel appearing for the petitioners has made a plea that the final details and records relating to the staff fixation process, student strength, etc. and the actual number of teachers presently working in the various Government Schools in Wayanad Education District as UPSA (Malayalam Medium), etc. are only available with the departmental authorities concerned. Though that may be true, it is not as if the petitioners have no access to those documents. The Right to Information Act, 2005, enacted by the Parliament, is a powerful tool which can be easily utilised in occasions like this. Anx.A1 rank list was published as early as on 07.01.2019. Even going by the admitted pleadings of the petitioners, they are having lower rank positions in Anx.A1 rank list and some of them are not even included in the main list but only in supplementary lists for the reservation eligibility community concerned. Anx.A1 rank list was published as early as on 07.01.2019. Even going by the admitted pleadings of the petitioners, they are having lower rank positions in Anx.A1 rank list and some of them are not even included in the main list but only in supplementary lists for the reservation eligibility community concerned. It is elementary that if a candidate is included only in the supplementary list of the rank list prepared by the Kerala Public Service Commission, then the candidate concerned will get the right to be considered for advice only as against the community reservation turns and not as against the open competition turns. 15. It was well known to the petitioners since 07.01.2019 that their rank positions in Anx.A1 rank list is on the lower side. Further, some of the provisions contained in Rule 14 of Part-II Kerala State & Subordinate Services Rules (KS&SSR) 1958, introduced by way of an amendment, have been made effective from 08.03.2006 whereby Rule 14(f) now mandates that a provisional appointment chart, at the time of each advice, showing separately the candidates eligible to be selected on open competition basis and candidates eligible to be selected on reservation turns including details of Non-Joining Duty (NJD), No Candidates Available (NCA) vacancies and forfeited reservation turn vacancies pending, if any, to be compensated shall be published. The proviso thereto further stipulates that a final appointment chart shall be published at the end of the selection year showing the candidates selected on open competition basis and selected on reservation quota, etc. The Note appended to Rule 14(f) further stipulates that appointment chart for the purpose of the said Rule shall mean the list showing the details of candidates advised based on merits and another list of candidates advised based on reservation showing their community, group of communities, turn, vacancy details, such as NJD, NCA, Temporarily Passed Over (TPO) turn, etc. The Note appended to Rule 14(f) further stipulates that appointment chart for the purpose of the said Rule shall mean the list showing the details of candidates advised based on merits and another list of candidates advised based on reservation showing their community, group of communities, turn, vacancy details, such as NJD, NCA, Temporarily Passed Over (TPO) turn, etc. It may be pertinent to refer to the provisions contained in Rule 14(f) of Part-II Kerala State & Subordinate Services Rules (KS&SSR) and its proviso and the Note appended thereto, which reads as follows: “Rule 14(f) A provisional appointment chart, at the time of each advice, showing separately the candidates eligible to be selected on open competition basis and candidates eligible to be selected on reservation turns including details of non joining duty, no candidate available vacancies, and forfeited reservation turn vacancies pending, if any, to be compensated shall be published: Provided that a final appointment chart shall be published at the end of the selection year showing the candidates selected on open competition basis and selected on reservation quota. Note: “Appointment Chart” for the purpose of this rule shall mean the list showing the details of candidates advised based on merit and another list of candidates advised based on reservation showing their community, group of communities, turn, vacancy details, such as non joining duty, no candidate available, temporarily passed over, etc.” 16. We are told that the abovesaid appointment chart is being regularly published by the Kerala Public Service Commission in their official website, at any rate, since a provisional appointment chart and the final appointment chart is staturorily bound to be published, and the candidate concerned can easily access those documents by a mere request filed under the Right To Information (RTI) Act. 17. If the petitioners had diligently made enquiries about the details of the provisional appointment charts so far published during the currency of Anx.A1 rank list, which was in force since 07.01.2019, the various vacancies so far reported, as to how vacancies have been utilised for OC turns, BC turns, NCA, NJD, etc. could have been easily discernible. 17. If the petitioners had diligently made enquiries about the details of the provisional appointment charts so far published during the currency of Anx.A1 rank list, which was in force since 07.01.2019, the various vacancies so far reported, as to how vacancies have been utilised for OC turns, BC turns, NCA, NJD, etc. could have been easily discernible. The details could have easily been discernible to candidates, like the present petitioners, to know as to how many more vacancies should have been reported, atleast on an approximate basis, to estimate as to whether their turns for advice would have arisen, going by the details in such provisional appointment charts as well as in the roster/cycle to be followed for effectuating OC-BC turns. So also, the applicants could have easily made the Right To Information Act request before the various educational authorities in Wayanad District to give details of the number of students admitted for the academic year 2020-21 and for the academic year 2021-22 in each of the Government UP schools mentioned in Anx.A2 and also the details of the exact number of teachers actually working in those schools for these two academic years. 18. If atleast the details of the students shown to be admitted to the respective classes in the Upper Primary Section for these two academic years were accessed by the petitioners and also the details of the present number of teachers in the educational districts were also accessed by them, then they could have easily computed, atleast roughly, as to whether additional teaching posts were required for these two academic years going by the prescribed student ratio of 1:25 or the norms concerned in that regard. On that basis, the petitioners could have easily given a concrete and material documents to show that the specified number of vacancies, as stated by them, arrived at on the basis of these materials, could have been pleaded in the original application. Instead of that, the petitioners have only chosen to blandly state that such and such number of vacancies are arising in each of the schools covered for each of the educational sub-districts of Wayanad Educational District. A mere assertion that so many vacancies are available, cannot amount to a proper and relevant material for the judicial review court to act. Instead of that, the petitioners have only chosen to blandly state that such and such number of vacancies are arising in each of the schools covered for each of the educational sub-districts of Wayanad Educational District. A mere assertion that so many vacancies are available, cannot amount to a proper and relevant material for the judicial review court to act. It is all the more so since the respondent appointing authority has given meticulous details to show that they have been very diligent, even till the last minute, in the matter of reporting of available vacancies. 19. Even after the dismissal of the interim plea, it appears that the appointing authority has reported even vacancies over and above those mentioned before the Tribunal. When very many vacancies have already been reported and have found its way, then there should be strong and cogent materials for the judicial review courts to rebut such a stand of the department. For that, the materials as in Anx.A2 would not suffice at all. If the Tribunal or this Court were to exercise their powers of judicial review to act upon such materials, then that will not be the right and proper manner of exercising the extraordinary discretionary powers conferred under Article 226 of the Constitution of India. 20. The courts have to be very careful and prudent in exercising the powers of judicial review in areas of this nature. 21. Therefore, we are of the view that the Tribunal cannot be faulted for having arrived at the conclusion as per the impugned interim order that there are no cogent and relevant materials to rebut the abovesaid stand of the appointing authority. 22. That apart, we have also perused the recent judgment rendered by a 3 Judge Bench of the Apex Court on 08.12.2021 in the case in Director of Indian System of Medicine and Another vs. Dr. Susmi C.T. and Another, Civil Appeal arising out of SLP (C) Nos. 24214-24221 of 2019, etc. 23. It may be pertinent to refer to Para No. 26 of the said judgment of the Apex Court in Dr. Susmi’s case (supra), which reads as follows: “26. It is, therefore, as against vacancies that are reported to the KPSC, that the candidates have some semblance of a right. However, as far as those not reported are concerned, the candidates cannot claim a right per se. Susmi’s case (supra), which reads as follows: “26. It is, therefore, as against vacancies that are reported to the KPSC, that the candidates have some semblance of a right. However, as far as those not reported are concerned, the candidates cannot claim a right per se. It is possible that in given situations, the state may be lethargic, or even may not wish to report vacancies. In such situations, undoubtedly the individuals awaiting appointment may have recourse to judicial remedies. In such proceedings, the government or the concerned agency can furnish a suitable explanation. If that is found to be arbitrary, appropriate directions may follow. However, the procedure in all such cases, would be to consider the state’s response. In the present case, the KAT in this court’s opinion, entirely misdirected itself in making an inquiry whether vacancies had arisen in June 2017, with promotion of some Medical Officers. As the department explained, those promotions could not automatically result in vacancies, having regard to the fact that excess number of Medical Officers were on the rolls. Furthermore, the KAT in our opinion, should not have inquired into the matter, once it was reported that all vacancies that could be reported, had been reported - as is evident from the reply filed by the department, as well as the tabular chart in it.” 24. The Apex Court, after meticulously analysing the facts of that case as well as the provision contained in Rules 13 and 14 of the Kerala Public Service Commission Rules of Procedure, has held that as far as vacancies that are not reported are concerned, the candidates cannot have a claim per se but that it is certainly possible that in given situations, the State authorities may be lethargic or even may not wish to report vacancies and in such scenarios, undoubtedly the individuals awaiting appointment and advise may have recourse to judicial remedies. That, in such proceedings, the Government or the agency concerned can furnish a suitable explanation and if that is found to be arbitrary, then certainly appropriate directions can be issued by the judicial fora concerned and that the procedure in all such cases would be to consider the state’s response and if there are strong and cogent materials to come to the considered conclusion that the abovesaid stand of the state authorities is rather arbitrary and without any materials, then certainly the High Court of the Tribunal exercising powers under judicial review can certainly exercise their discretionary powers to issue appropriate directions in the matter of provisional reporting of vacancies, etc., subject to the condition that the final determination regarding the actual existence or otherwise of those vacancies is to be rendered later. 25. In Dr. Susmi’s case (supra), the orders under challenge were not merely the final verdict of the Tribunal, but also certain interim orders passed by the Tribunal in the matter of reporting of provisional vacancies. 26. The Apex Court found that very many vacancies have been reported by the appointing authority to the PSC already and that 125 candidates were already advised and vacancies ranging between 17 and 1 were continuously reported for the period from 05.05.2014 to 17.11.2017, etc. and that the Apex Court held that the Tribunal fell into a grave error in holding that several vacancies have arisen due to promotion of Senior Medical Officer, etc. in the facts of that case. 27. Sri. Kaleeswaram Raj, learned counsel appearing for the petitioners, has also urged before us that another Bench of the very same Tribunal has taken a different view in the case in the interim order dated 22.12.2021 in O.A. No. 1818/2021 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram Bench, in relation to the rank list to the post of Lower Primary School Assistant (Malayalam medium) [LPSA (Malayalam medium)] in Alappuzha District, the rank list of which was to expire on 27.12.2021, etc. The learned counsel appearing for the petitioners has also made available a copy of the said interim order dated 22.12.2021, rendered by the Tribunal in O.A. No. 1818/2021, wherein the Tribunal, after hearing both sides has ordered that atleast 149 vacancies of LPSA (Malayalam medium) should be reported provisionally by the appointing authority so as to reach the office of the Kerala Public Service Commission well before 27.12.2021, etc. and that no advice will be made against those vacancies. 28. We are not in a position now to adjudge the correctness or otherwise of the said interim order passed by the Tribunal in O.A. No. 1818/2021 and other cases because a challenge has not been made before us. 29. Therefore, it may not be wise and prudent for us to to get into the factual appreciation of the case involved in O.A. No. 1818/2021. After perusal of the interim order in O.A. No. 1818/2021, as well as the factual details in this case, we note that, even when the Tribunal has rendered the impugned interim order in this case, very many vacancies have already been reported and subsequently we are told that as of now 209 vacancies have been reported and the appointing authority has reported 9 more vacancies which is inclusive of the 7 vacancies mentioned before the Tribunal and a report has been prepared yesterday (04.01.2022) to report 5 more vacancies and we are told that the appointing authority will ensure that the said report of the 5 additional vacancies will be made to the Kerala Public Service Commission, immediately, at any rate, to ensure that the report reaches the Kerala Public Service Commission, well before the expiry of the rank list on 06.01.2022. 30. Therefore, we should be focusing our attention more to the facts of this case. If we adjudge the correctness or otherwise of the interim order dated 22.12.2021 in O.A. No. 1818/2021, that will not judicially be a right approach. 30. Therefore, we should be focusing our attention more to the facts of this case. If we adjudge the correctness or otherwise of the interim order dated 22.12.2021 in O.A. No. 1818/2021, that will not judicially be a right approach. Since no challenge has been made so far, before us, as against the said order, we are not sure as to whether the appointing authority or any of the parties concerned will mount any challenge as against the said order in O.A. No. 1818/2021, either by filing an application before the Tribunal to vacate the interim order or to seek review thereon or to file any petition before this Court under Articles 226 and 227 of the Constitution of India. Such being the position, it will not be rather safe and prudent for us to get into the correctness or otherwise of the said order. 31. After hearing both sides, we are of the view that the Tribunal cannot be faulted for having arrived at the conclusion that there are no cogent and relevant materials before the Tribunal, made available by the petitioners so as to rebut the well-considered stand taken by the appointing authority before the Tribunal, in this case. 32. Further, we also note that the Apex Court has held in various decisions as in Shankarsan Dash vs. Union of India, (1991) 3 SCC 47 that a candidate included in a select list or rank list has no indefeasible right to be appointed even if the vacancy actually exists and that the State authorities, while filling up the vacancies have to act bona fide and not arbitrarily and if, for bona fide and reasonable grounds, the appointing authority can even take the stand that they do not intend to fill-up the existing vacancy, etc. It will be pertinent to refer to Para No. 7 of the decision of the Apex Court in Shankarsan Dash vs. Union of India (supra), which reads as follows: “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 no acquire any right to the post. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do no 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. 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, Neelima Shangla vs. State of Haryana or Jatinder Kumar vs. State of Punjab.” 33. The Full Bench of this Court, in a recent decision in the case in Kerala Public Service Commission vs. Sheejamol, 2020 (5) KLT 718 (FB) has also dealt with the issue as to whether the Court can be approached to compel an appointing authority to fill up vacancies from a rank list prepared by the Kerala Public Service Commission, etc. The issue No. (ii) raised by the Full Bench in Sheejamol’s case (supra) is as follows: “(ii) 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 Cooperative 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).” 34. The Full Bench has answered the said issue as per Para No. 13(II) of the said decision, as follows: “13. The Full Bench has answered the said issue as per Para No. 13(II) of the said decision, as follows: “13. xxx xxx xxx (i) xxx xxx xxx (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 Article 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.” 35. Taking into account the provisions contained in Rules 13 and 14 of the Kerala Public Service Commission (Rules of Procedure), it is not as if the judicial fora courts like the Tribunal, this Court, etc. exercising powers of judicial review under Articles 226 and 227 of the Constitution of India are powerless to deal with the case where the appointing authority arbitrarily refuses to report existing vacancies before the expiry of the rank list. 36. As the Apex Court has categorically held in the recent decision in Dr. Susmi’s case (supra), the correct approach is that as far as vacancies are not reported, the candidates cannot claim a legal right per se but that it is certainly possible that in given situations the departmental and State authorities may be lethargic and may be arbitrary in not reporting the vacancies or may not wish to report vacancies for irrelevant grounds and in such scenarios, undoubtedly, the candidates included in the rank list published by the Kerala Public Service Commission can take recourse to judicial remedies and in such proceedings, it is for the government or the department concerned to furnish a suitable explanation as to the pleadings and materials urged by the applicants/petitioners and about its correctness or otherwise. If the explanation offered by the departmental authority is found to be arbitrary, then certainly the Courts can issue appropriate interim directions to ensure that the appointing authority reports specified number of vacancies on a provisional basis, well before the expiry of the rank list to judicially determine the issue later. If the explanation offered by the departmental authority is found to be arbitrary, then certainly the Courts can issue appropriate interim directions to ensure that the appointing authority reports specified number of vacancies on a provisional basis, well before the expiry of the rank list to judicially determine the issue later. However, where the departmental authorities come with cogent materials to justify their stand that they have already reported all available vacancies, etc. and have even taken a diligent step thereafter, etc. then it is for the petitioners to rebut those aspects on the basis of cogent and relevant pleadings and materials. If proper materials are not there, it may not be right and proper for the court exercising powers of judicial review to direct the appointing authority to report vacancies. There should be cogent and proper materials or grounds to enable the court to come to the considered conclusion atleast at the interim stage that the stand of the petitioners is well justified and that the stand of the department is not satisfactory and proper. Such is not the case in the facts and circumstances of this particular case. Hence, the Tribunal cannot be blamed for refusing the grant of interim relief in this case. 37. Before parting with this case, we would take note of the fact that may come across in very many cases, where litigative proceedings are initiated by candidates included in a rank list published by the Kerala Public Service Commission before the Tribunal etc., at the fag end of the currency of the rank list concerned. 38. If candidates have legitimate grievances in the matter, it is for them to assess their rank positions and get details of the provisional appointment charts for advice and appointments already made from the rank list, in terms of Rule 14 of Kerala State and Subordinate Service Rules (KS&SSR) (Part-II) and assess as to how many more vacancies may be required for their advice and appointment, etc. If at all the appointment chart is duly published by the Kerala Public Service Commission in their official web-site, then it can be easily accessed by the candidate concerned. If at all provisional appointment chart is not published for a given period, since it is a statutory requirement in terms of Rule 14, the candidates can easily access the said documents through the Right to Information Act proceedings. If at all provisional appointment chart is not published for a given period, since it is a statutory requirement in terms of Rule 14, the candidates can easily access the said documents through the Right to Information Act proceedings. Therefore, in these cases, the petitioners should also be well equipped with the relevant factual aspects and materials. Thereafter the litigants concerned may approach the departmental authorities concerned by appropriate applications under the Right To Information Act to get the details regarding the vacancies available for further reporting, etc. These aspects may be duly reckoned by the litigants concerned by examining the Rules of Recruitment, the various methods for appointment to the posts concerned and the details can be otherwise available through the Right to Information Act, etc. It is on the basis of such cogent materials and pleadings that the litigants should be approaching the Tribunal, so that the Tribunal is also well equipped to deal with the matter. In such a scenario the respondent departmental authorities also will have to explain their stand in the matter and if there is no proper explanation to the cogent facts pleaded and materials produced by the litigants, then certainly the Tribunal can form an appropriate interim opinion in the matter and issue necessary directions, taking into account the strong prima facie case made in the matter, balance of convenience as well as the requirements for preservation of the subject matter of the lis, etc. We say so because in many cases, we find that the materials pleaded and produced by the litigants, are not adequate. Therefore, it is only in the interest of litigants concerned that, if they have any legitimate grievances, they should approach the judicial fora concerned atleast one year or 8 to 10 months before the expiry of the rank list and that too after equipping themselves with all relevant factual aspects and materials, as mentioned above. If such an approach is taken by the litigants, then the task of the judicial fora concerned like the Tribunal and this Court, etc. will be very easy and if any of the facts or materials relied on by the litigants are not correct, the departmental authorities can also cogently say so. 39. If such an approach is taken by the litigants, then the task of the judicial fora concerned like the Tribunal and this Court, etc. will be very easy and if any of the facts or materials relied on by the litigants are not correct, the departmental authorities can also cogently say so. 39. Therefore, it is only necessary in the interest of better administration of justice, that the litigants should take recourse to such a proper and well-studied approach, before initiating litigative proceedings. We say so only to ensure that legitimate grievances of the candidates are duly adjudicated by the judicial fora concerned through a just and fair manner so as to protect the rights and interests of both sides. 40. The upshot of the above discussion is that no grounds have been made out so as to warrant this Courts interference with the well-considered impugned interim order rendered by the Tribunal at Ext.P2. 41. With these observations and directions, the above original petition will stand dismissed.