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2022 DIGILAW 486 (KER)

Anees K. , S/o. Abdul Khader v. State Of Kerala

2022-06-17

A.K.JAYASANKARAN NAMBIAR, MOHAMMED NIAS C.P.

body2022
JUDGMENT : A.K. Jayasankaran Nambiar, J. As these O.P.(KAT)s and Writ Appeal involve a common issue, they are taken up together for consideration and disposed by this common judgment. 2. The petitioners/appellants in all these petitions were candidates included in various rank lists published by the Kerala Public Service Commission [hereinafter referred to as the “PSC”] in connection with selection to various posts. The validity of the rank lists was to expire on various dates between 5.2.2021 and 3.8.2021. Taking note of the COVID pandemic situation that prevailed in the State, that effectively disabled the PSC from holding examination for selection of candidates to various posts, the PSC, by a notification dated 5.2.2021, extended the validity period of the various rank lists that were to expire between 5.2.2021 and 3.8.2021, up till 4.8.2021. The extension of the validity period of the rank lists as aforesaid was apparently done in exercise of the power of the PSC under the 5th proviso to Rule 13 of the Public Service Commission Rules of Procedure [hereinafter referred to as the “Procedural Rules”]. The petitioners herein approached the Kerala Administrative Tribunal [KAT] through the O.A.s aforementioned contending that the extension granted by the PSC to all the rank lists that stood to expire between 5.2.2021 and 3.8.2021 was not uniform, and therefore not in accordance with the 5th proviso to Rule 13 of the Procedural Rules. In particular, it was pointed out that some of the rank lists stood extended only by a couple of months and well short of the minimum of three months contemplated under the 5th proviso to Rule 13 of the Rules of Procedure. While the prayer in the O.A.s was for a direction to the PSC to extend the validity period of various rank lists uniformly for three months, six months or such other period falling short of the maximum aggregate period of four and a half years, the Tribunal found that the mere fact that the various rank lists that expired during the period mentioned in the notification would get different periods of extension pursuant to the Notification, did not tantamount to meting out any discrimination by the PSC in the matter of grant of extension to rank lists. The Tribunal was of the view that when the PSC exercised its power in accordance with the 5th proviso to Rule 13, it had to be satisfied of the existence of a situation which required the extension of a ranked list, and when the particular circumstance under which the extension was granted was expected to come to an end by the outer date prescribed in the notification, it had to be understood that the lists that obtained the minimum extension would be a list that was least affected by the circumstances under which the general extension was granted. A distinction was also drawn by the Tribunal between the words 'ranked lists' used in the 5th proviso to Rule 13 as against 'ranked list' used in the other provisos to Rule 13 to hold that the PSC, while invoking the 5th proviso to Rule 13, was not bound to provide a minimum extension of three months to individual rank lists which fell within the purview of the extension. The O.A.s were therefore dismissed by the Tribunal. 3. In W.A.No.401/2022, the judgment dated 4.3.2022 of a learned Single Judge in W.P.(C).No.15071/2021 is impugned. By the said judgment, the learned Single Judge, relying on the same order of the KAT that dismissed the O.A.s of the petitioners in the O.P.(KAT)s referred above, and following the observations of the Division Bench in W.A.No.1865/2017 found that there was no ground made out for granting the declaration sought by the appellants for keeping the rank list in question valid for a further period of 12 months from 4.8.2021. 4. We have heard Smt.Aruna A., Sri.Varun C. Vijay and Sri.S.Sabarinadh, the learned counsel appearing for the petitioners/appellants in these petitions and Sri.P.C. Sasidharan, the learned Standing Counsel for the PSC. We have also heard Sri.Bijoy Chandran, the learned Government Pleader for the official respondents of the State. 5. The learned counsel for the petitioners/appellants would submit that the 5th proviso to Rule 13 of the Procedural Rules clearly mandates that the power of the PSC to extend the period of the rank lists is subject to the condition that the extension had to be for a minimum period of three months. 5. The learned counsel for the petitioners/appellants would submit that the 5th proviso to Rule 13 of the Procedural Rules clearly mandates that the power of the PSC to extend the period of the rank lists is subject to the condition that the extension had to be for a minimum period of three months. It is contended therefore that once the PSC is satisfied of the existence of circumstances that warrant the exercise of the power under the 5th proviso to Rule 13, then the extension granted in exercise of the said power has to result in the extension of the validity period of individual rank lists by a period of atleast three months. It is pointed out that in the instant cases, consequent to the extension granted through Annexure A16 notification, the rank lists in which the petitioners were included, stood extended only by a period less than three months, and to that extent, it was an erroneous exercise of power by the PSC. It is also pointed out that the distinction drawn by the Tribunal between 'ranked lists' contemplated in the 5th proviso to Rule 13 and 'ranked list' in the other provisos to the same Rule cannot also be legally sustained since the interpretation of the Tribunal would militate against the express provisions of the 5th proviso to Rule 13 of the Procedural Rules. 6. Per contra, it is the submission of Sri.P.C. Sasidharan, the learned Standing Counsel for the PSC that the provisions of the 5th proviso to Rule 13 of the Procedural Rules cannot be read in isolation, and has to be read in the context of the general provisions under Rule 13, which deal with the circumstances under which the validity period of the individual rank lists can be extended. In that connection, he points out that while the minimum period of extension is invariably prescribed in respect of individual rank lists, what is provided for in the 5th proviso is a general period of extension in respect of all rank lists expiring within the period determined by the PSC as being affected by any extraordinary situation. It is his contention therefore that the benefit of an extension by a minimum period of three months will not enure to individual rank lists that expire within the period determined by the PSC as covered by the extraordinary situation. It is his contention therefore that the benefit of an extension by a minimum period of three months will not enure to individual rank lists that expire within the period determined by the PSC as covered by the extraordinary situation. He would also place reliance on a Division Bench judgment of this Court in Kerala Public Service Commission v. Manoj Kumar K. and Others -[MANU/KE/0560/2018] to contend that this Court has already taken a view that in terms of the 5th proviso to Rule 13, it would not be permissible to grant some rank lists, the benefit of an extension which would take it beyond the outer time limit prescribed by the PSC in the notification granting extension. 7. We have considered the rival submissions, and for the reasons that are to follow, we find ourselves unable to sustain the impugned order of the Tribunal in the O.P.(KAT)s and the impugned judgment of the learned Single Judge, in the Writ Appeal. It is not in dispute that it was on the subjective satisfaction of the PSC as regards the existence of circumstances that necessitated the exercise of the power, that it chose to exercise its power to extend the validity of rank lists in terms of the 5th proviso to Rule 13 of the Procedural Rules. The 5th proviso to Rule 13 of the Procedural Rules reads as follows: “13. The 5th proviso to Rule 13 of the Procedural Rules reads as follows: “13. The ranked lists published by the Commission shall remain in force for a period of one year from the date on which it was brought into force provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years whichever is earlier: xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxx Provided further that if the Commission is satisfied of the existence of a period of general ban declared by the Government on the reporting of vacancies to the Public Service Commission or of any other circumstances or of any extraordinary situation in which the reporting of vacancies by the appointing authorities is prevented or restricted or delayed, the Commission shall have the power to keep alive the Ranked Lists which are normally due to expire during the said period for such periods as may be decided by the Commission subject to a minimum period of three months or for such further periods but not exceeding one and a half year in the aggregate. If the Commission so decides it shall issue a Notification keeping alive the Ranked Lists in the above manner and shall advise candidates from such Ranked Lists to the vacancies reported during such extended period of validity of the Ranked List.” We might, at the outset, point out that there was some confusion during the course of hearing as regards whether or not the 5th proviso to Rule 13 extracted above had been amended with effect from 2020. We therefore requested the learned Standing counsel for the PSC to ascertain whether Rule 13 had been amended, and if so, to produce a copy of the Gazette notification that amended the Rule. The learned Standing counsel subsequently reported to us that there had, in fact, been no amendment to Rule 13, and so we must proceed to decide these cases based on the provision as extracted above. 8. The learned Standing counsel subsequently reported to us that there had, in fact, been no amendment to Rule 13, and so we must proceed to decide these cases based on the provision as extracted above. 8. When we consider the 5th proviso, we find that firstly, it enables the PSC to keep alive ranked lists which are normally due to expire during a period determined by the PSC as affected by an extraordinary situation in which the reporting of vacancies by the Appointing authorities is prevented or restricted or delayed. The provision then deals with the manner of exercise of the power when it speaks of keeping alive the ranked lists for such period as may be decided by the PSC subject to a minimum period of three months or for such further period not exceeding one and a half years in the aggregate. The provision thereafter provides that on the PSC issuing a notification keeping alive the ranked lists, it shall advise candidates from such ranked lists to the vacancies reported during such extended period of validity of the ranked list [emphasis supplied]. A reading of the provision therefore clearly indicates that while the decision to extend the validity of any ranked list is at the discretion of the PSC, based on the power conferred on it under the provision, if and when it chooses to exercise the power, then the validity of the lists in relation to which the power is exercised has to be extended by a minimum period of three months, and the vacancies reported during such extended period of validity of the ranked lists concerned must also be reckoned for the purposes of advise of candidates from the lists concerned. This would be the only meaningful way of reading the 5th proviso to Rule 13 in the light of the object sought to be achieved through the main provision. 9. On the facts in the instant cases therefore, since the PSC was satisfied of the existence of the extraordinary circumstances which necessitated the extension of the validity period of rank lists expiring during the period from 5.2.2021 to 3.8.2021, the specification of the outer limit for the extension granted ought to have taken within it the minimum period of three months from the date of normal expiry of the individual rank lists. In otherwords, if it was the intention of the PSC to extend the validity of rank lists upto 4.8.2021, then it could have considered the cases of only those rank lists whose validity would have expired on or before 4.5.2021 i.e., three months before 4.8.2021. The validity of such rank lists as ordinarily expired during the period from 5.2.2021 to 4.5.2021 could have then been extended till 4.8.2021 without breaching the procedural Rules. 10. There is yet another angle in which the issue can be viewed. Given that the PSC was satisfied of the existence of extraordinary circumstances during a particular period, warranting an extension of the validity period of rank lists which expired during the said period, the said period could have been excluded while computing the original validity period of three years of the rank lists in question. In otherwords, in view of the subjective satisfaction of the PSC that the period between 5.2.2021 and 3.8.2021 was a period during which an extraordinary situation prevailed, in which reporting of vacancies by Appointing Authorities was either prevented or restricted or delayed, the said period could have been excluded while computing the original validity period of the lists in question. In that event, the lists in which the petitioners/appellants were included, would also have been extended by a period of almost six months which would take it beyond the outer date of 4.8.2021 notified by the PSC. Thus, in any view of the matter, we find that the prayer of the petitioners to extend the validity of their individual rank lists to such dates as would satisfy the requirement of extension by a minimum period of three months as contemplated by the procedural Rules, is not fanciful or unreasonable. 11. In this connection, we might also refer to the judgment of the Division Bench of this Court relied on by the learned Standing Counsel for the PSC to contend that such extension was not permitted by the said judgment. A reading of the said judgment clearly reveals that in the cases considered by the Division Bench, the validity of the rank lists in question had already been extended once in the past, and it was in the context of seeking a benefit of a subsequent extension that the Division Bench found that the outer date prescribed by the PSC would hold notwithstanding the 5th proviso to Rule 13. Inasmuch as we are not dealing with a similar situation in the instant cases, we do not find the said judgment to be of any assistance to the respondents herein. In the result, we allow these O.P.(KAT)'s and the Writ Appeal, by setting aside the order/judgment of the KAT/learned Single Judge, and direct the PSC to treat the rank lists covered in these cases as alive for a period of three months from the date of its normal expiry, and to consider the claim of the petitioners for advise to vacancies that were reported during the said extended period of validity of the rank lists in question. The needful should be done by the PSC within two months from the date of receipt of a copy of this judgment.