Kerala Public Service Commission, Represented by Its Secretary v. Vilayathulla P. H. , S/o. P. G. Hameed Bava
2024-11-19
A.MUHAMED MUSTAQUE, P.M.MANOJ
body2024
DigiLaw.ai
JUDGMENT : A. Muhamed Mustaque, J. In these matters, the Kerala Public Service Commission (PSC), as well as candidates included in a ranked list published by the PSC on 16/05/2023 for appointment to the post of Fire and Rescue Officer (Driver) (Trainee), challenges the order of the Tribunal. This is for the reason that, for recruitment to the same post, the Tribunal, based on the ranked list dated 10/10/2019, ordered an extension of the period of the said ranked list (10/10/2019) on the ground that an interim order passed by the Tribunal in another matter curtailed its lifespan. Therefore, the Tribunal ordered that the ranked list shall run for an additional period equivalent to the period of interim order from 18/12/2019 to 18/01/2021. 2. The facts of the case are as follows: PSC invited applications for selection to the post of Fireman Driver-cum-Pump Operator (Trainee) in the Fire and Rescue Services as per a notification dated 12/05/2017. The ranked list came into force with effect from 10/10/2019. The ranked list was cancelled by the PSC on 09/10/2020. During the currency of the ranked list, a challenge was raised against the qualification for appointment as Fireman Driver-cum-Pump Operator (Trainee). The Tribunal as per order in O.A.[EKM].No.666/2018 and connected cases passed an interim order on 18/12/2019 interdicting PSC from advising the candidates from the ranked list. This stay continued till 18/01/2021. As a result of the above order, no advice was made. The Tribunal thereafter dismissed the challenge on 18/01/2021. A fresh original application was filed as O.A. No. 1457/2020 seeking an extension of the validity of the ranked list equal to the period during which the interim order was granted by the Tribunal from 18/12/2019 to 18/01/2021. That had been allowed. This is how O.P.(KAT).No.399/2022 was filed before this Court challenging the order of the Tribunal by PSC. The candidates in the ranked list dated 16/5/2023 filed O.P.(KAT).No.379/2023 challenging the very same order. O.P.(KAT).No.198/2024 was filed by another set of candidates included in the ranked list dated 16/5/2023 for an extension of the validity of their ranked list. 3. The Tribunal, in O.A.No.1457/2020 placed reliance on the Full Bench judgment of this Court in Unnikrishnan Nair G.S. and Others v. State of Kerala and Others [ 2019 (2) KHC 24 ] to extend the period. We shall examine the applications of the above judgment in this matter at a later stage.
3. The Tribunal, in O.A.No.1457/2020 placed reliance on the Full Bench judgment of this Court in Unnikrishnan Nair G.S. and Others v. State of Kerala and Others [ 2019 (2) KHC 24 ] to extend the period. We shall examine the applications of the above judgment in this matter at a later stage. 4. It is to be noted that 62 vacancies were reported during the currency of the ranked list and upon disposal of the case, all advices were issued. There was no interdiction against the reporting of vacancies. Pursuant to a fresh notification, 80 vacancies were reported. Rule 13 of Kerala Public Service Commission Rules of Procedure prescribes the procedure to be followed after the publication of a ranked list. Under Rule 13, a ranked list published is normally in force for a period of one year provided that the said list will continue to be in force till the publication of a new list after the expiry of a minimum period of one year or till the expiry of three years whichever is earlier. Under the 4th proviso to Rule 13, if no candidate is advised during the period of one year, the life of the ranked list will be extended till the expiry of 3 years; and also for a further period of one year, if the situation continues. Under the 5th proviso to Rule 13, if there is a period of general ban declared by the Government in reporting the vacancies, PSC will have the power to keep the ranked list alive for such another period, as it may be decided, subject to minimum period of three months or for such other period not exceeding one and a half year in aggregate. 5. A Division Bench of this Court in KPSC v. Dr. Kesavankutty Nair (1977 KHC 287) in similar circumstances held that the principles of actus curiae neminem gravabit does not apply. Another Division Bench of this Court in Unnikrishnan Nair’s case (supra) doubted the correctness of the law laid down by the Division Bench in Dr. Kesavankutty Nair’s case and, accordingly, referred the matter to the Full Bench. The Full Bench, in Unnikrishnan Nair’s case, affirmed the law laid down in Dr. Kesvankutty Nair’s case.
Another Division Bench of this Court in Unnikrishnan Nair’s case (supra) doubted the correctness of the law laid down by the Division Bench in Dr. Kesavankutty Nair’s case and, accordingly, referred the matter to the Full Bench. The Full Bench, in Unnikrishnan Nair’s case, affirmed the law laid down in Dr. Kesvankutty Nair’s case. While upholding so, it was observed that “normally, it is only in two specific contingencies can the expiry of a ranked list obtain postponement; namely, if a Court interdicts the appointing authorities from reporting vacancies to Public Service Commission during its life time; or, if a Court prohibits Public Service Commission from making advice from the rank list within the period of one year or such other periods as may be statutorily prescribed.” Relying on this observation, apparently, the Tribunal in O.A.No.1457/2020 held that the period can be extended. We are of the view that the Tribunal completely misread the judgment in Dr. Kesvankutty Nair’s case (supra) as affirmed by the Full Bench. The Full Bench referred to the circumstances under which extension can be allowed, but it cannot be understood as a declaration of law. It is only a reference to the circumstances in which possibly an extension can be sought. On the other hand, the Full Bench affirmed the decision of Dr. Kesvankutty Nair’s case (supra) holding that actus curiae neminem gravabit cannot be relied on in those circumstances. 6. This Court in a recent judgment in Writ Appeal No. 614/2024 and connected case, dated 11/11/2024, in paragraph 11, held as follows : 11. We need to outline the cautious application of the legal principle Actus Curiae Neminem Gravabit (the act of the court shall prejudice no-one). To invoke this principle, two essential conditions must be met: 1. Existence of Adverse Proceedings: A court or authority must have issued proceedings or orders that adversely affect a litigant due to factors such as error, mistaken judgment, or undue delay. 2. Demonstrated Prejudice: These adverse proceedings must have caused actual prejudice or disadvantage to the litigant. This principle does not, on its own, create rights or claims; rather, it serves as a remedial measure within the administration of justice when a judicial error has caused harm. Courts must avoid extending this principle to confer new rights or benefits.
2. Demonstrated Prejudice: These adverse proceedings must have caused actual prejudice or disadvantage to the litigant. This principle does not, on its own, create rights or claims; rather, it serves as a remedial measure within the administration of justice when a judicial error has caused harm. Courts must avoid extending this principle to confer new rights or benefits. Actus Curiae Neminem Gravabit does not inherently grant rights or claims to litigants; rather, it is a remedy that courts can consider within the administration of justice when a litigant has been harmed by procedural or judicial error. Courts must also ensure that the application of this principle is not extended beyond its purpose to inadvertently create new rights or benefits. In “extreme situations” on a carefully weighed consideration court can invoke it, as an independent action outside the context of prior proceedings. In such situations, courts should carefully assess whether the litigant previously had an opportunity to seek remedy and if the alleged prejudice could have been addressed in prior proceedings. If the court cannot independently analyse the disadvantage without reference to earlier proceedings, it should avoid applying the principle of Actus Curiae Neminem Gravabit in a way that implies an independent right or benefit for the litigant. Instead, the principle should be used only as a remedial measure within the scope of existing litigation, and not as a basis for creating new entitlements. 7. It is to be noted that the applicants before the Tribunal failed to prove that any harm has been caused to them due to the interim order passed in the earlier litigation. It is also to be noted that there was no interdiction against reporting vacancies to PSC. PSC has acknowledged receipt of the proforma that report vacancies. The only interdiction was against issuing advice memo as against the vacancies reported. Therefore, there is no scope for relying on the maxim actus curiae neminem gravabit. Further, PSC is a constitutional body. Under 5th proviso to Rule 13 of the Kerala Public Service Commission Rules of Procedure, PSC alone is empowered under law to take a decision as to the extension of the period, that too, in the circumstances referred to in the 5th proviso.
Further, PSC is a constitutional body. Under 5th proviso to Rule 13 of the Kerala Public Service Commission Rules of Procedure, PSC alone is empowered under law to take a decision as to the extension of the period, that too, in the circumstances referred to in the 5th proviso. The Tribunal could not have directed PSC to extend life of the ranked list equivalent to the period of interim order as the applicants before the Tribunal failed to make out a case that there was a ban in reporting vacancies to PSC. Thus, the order of the Tribunal in O.A.No.1457/2020 dated 16/9/2022 is set aside. O.P. (KAT).No.399/2022 is allowed. O.P.(KAT).No.379/2023: This original petition is filed against the order of the Tribunal dismissing a review application filed against the order in O.A.No.1457/2020 aggrieved by the order in O.A.No.1457/2020, dated 16/9/2022. In light of the disposal of O.P.(KAT).No.399/2022 setting aside the order in O.A.No.1457/2020, dated 16/9/2022, O.P.(KAT).No.379/2023 is, disposed of. O.P.(KAT).No.198/2024: This case is filed against the order of the Tribunal in O.A.(EKM).No.616/2024, dated 12/4/2024. The Tribunal dismissed the application filed by the petitioners for extending validity of a ranked list based on an interim order granted in O.P.(KAT).No.399/2022 extending validity of a previous ranked list. In light of the disposal of O.P.(KAT).No.399/2022 setting aside the order in O.A.No.1457/2020, dated 16/9/2022, we find no reason to interfere with the order of the Tribunal. O.P.(KAT).No.198/2024 is therefore dismissed. The original petitions are disposed of as above.