Mithun E vs Kerala Public Service Commission
2021 Latest Caselaw 11605 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

           THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

    FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                       WP(C).No.4014 OF 2021(B)


PETITIONERS:

      1        MITHUN E
               AGED 34 YEARS
               S/O. KRISHNAN.T., KRISHNAHARI, AROLI P.O.,
               PAPPINISSERI, KANNUR-670 561

      2        UNAIS.P.
               AGED 26 YEARS
               S/O. MUHAMMED P., PARI HOUSE, HAJIYARPALLY,
               MALAPPURAM-676 519

      3        THRIPTHI.A.K.
               AGED 30 YEARS
               W/O. SAJIN.C.J., AYINIPPULLY HOUSE, POKALAYI,
               KOOLIMUTTAM P.O., KODUNGALLUR, THRISSUR-680691

      4        VINITHA.T.G.
               AGED 34 YEARS
               W/O. AJITHKUMAR.K.A., KALATHIPARAMBIL HOUSE,
               NARAYANAMANGALAM ,PULLUT P.O., THRISUR-680 663

      5        MIDHUN SAJEEV
               AGED 26 YEARS
               S/O. SAJEEV, VAZHUTHANAPALLIL, VATHIKUDY,
               THOPRAMKUDY, IDUKKI-685 604

      6        ARUN SURESH
               AGED 30 YEARS
               S/O. SURESH.M.N, MELETHEKKUMPURATH, KADATHI,
               MEKKADAMBU P.O., ERNAKULAM-682 316

      7        RAHUL.M.S,
               AGED 29 YEARS
               S/O. MOHANAN.P., RAHUL NIVAS, KARAKKONAM.P.O.,
               THIRUAVANANTHAPURAM-695504

      8        AJAISON.J.A.
               AGED 28 YEARS
               S/O.JOHNSON.C.,J.A.BHAVAN, VARUVILAKAM, KULATHOOR,
               UCHAKKADA P.O., THIRUVANANTHAPURAM-695 506
       9        ANUSHA.M.
               AGED 34 YEARS
               W/O.PRASANTH.M., CHOTHY, NRRA 37, NETAJI ROAD,
               VATTIYOORKAVU P.O., THIRUVANANTHAPURAM-695 013

      10       SUJITH S.PILLAI
               AGED 34 YEARS
               S/O. SUKUMARA PILLAI, V.S.BHAVANAM, PALLIKKAL EAST,
               THEKKEKARA P.O., MAVELIKKARA, ALAPPUZHA-680 107

               BY ADVS.
               SRI.P.NANDAKUMAR
               SMT.AMRUTHA SANJEEV

RESPONDENTS:

      1        KERALA PUBLIC SERVICE COMMISSION
               REPRESENTED BY ITS SECRETARY, PATTOM,
               THIRUVANANTHAPURAM-695 004

      2        THE REGIONAL OFFICER,
               KERALA PUBLIC SERVICE COMMISSION, REGIONAL OFFICE,
               KOLLAM-691 001

      3        MALABAR CEMENTS LIMITED,
               WALAYAR, PALAKKAD-678 624, REPRESENTED BY ITS
               MANAGING DIRECTOR


               R1-2 BY SHRI.P.C.SASIDHARAN, SC, KPSC
               R3 BY ADV. SMT.LATHA ANAND

OTHER PRESENT:

               SRI. P.C. SASIDHARAN SC, KPSC , SRI. T.RAJASEKHARAN
               NAIR-GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-
03-2021, THE COURT ON 09-04-2021 DELIVERED THE FOLLOWING:
 W.P.(C).No.4014/2021
                                         3


                                 JUDGMENT

Dated this the 9th day of April 2021

1. This writ petition is filed seeking the following relief:

"To issue a writ of mandamus directing respondents 1 and 2 to re-advise the petitioners forthwith in other existing reported vacancies of Junior Assistants, without affecting their original advise seniority."

2. Heard the learned counsel for the petitioners and the learned

Standing Counsel appearing for respondents 1 and 2 as well

as the learned Standing Counsel appearing for the 3 rd

respondent.

3. The petitioners are candidates, who are included in Exhibit P2

ranked list of Junior Assistant/Cashier/Assistant Grade II/

Clerk Grade I/ Time Keeper Grade II/Senior Assistant/

Assistant/ Junior Clerk etc. in KSFE Ltd/KSEB Ltd/Thrissur

Corporation, KMCS Electrical Wing/Kerala Minerals and

Metals Ltd/ Keltron/ Kerala State Cashew Development

Corporation/ Malabar Cements Ltd/ Kerala State Handloom

Development Corporation/ Kerala Agro Machinery Corporation W.P.(C).No.4014/2021

Ltd/ Travancore Titanium Products Ltd/ Kerala Land

Development Corporation Ltd/ Development Authorities in

Kerala. They were advised for appointment on 29.09.2020

against the NJD vacancies reported by the 3 rd respondent.

Though, 15 candidates were advised under the 3 rd

respondent, only one candidate was appointed as Time Keeper.

In spite of several requests, the 3 rd respondent refused to

appoint the petitioners on the reason that they don't require

any further candidates for appointment due to serious

financial constraints. The petitioners therefore seek re-advise

without affecting their advise seniority. Exhibit P8 decision is

relied on in support of their claims.

4. A statement is filed by the 3rd respondent. It is admitted that

the 3rd respondent had reported 16 vacancies in the post of

Clerk Grade I and 5 vacancies of Time Keeper Grade II to the

Public Service Commission between 19.10.2017 and

19.07.2018. However, due to loss suffered by the

establishment from 2017-18 and further losses in 2018-19 and

2019-20, the respondents could offer employment only to 6 of W.P.(C).No.4014/2021

the 21 candidates advised for appointment by the PSC and

they are unable to appoint further candidates. It is stated that

Ext.R3(a) communication was issued by the company to the

PSC informing that only 2 Assistant Tester Cum Gauger and 1

Dresser are required in the company and further

appointments cannot be made. It is further submitted that

Ext.R3(b) communication has been forwarded to the

Government to modify/abolish/reduce certain posts already

notified to the PSC. It is, therefore, contended that the 3 rd

respondent is unable to appoint the petitioners even against

the notified posts in view of their existing financial condition.

5. Respondents 1 and 2 have also placed a counter affidavit on

record. It is stated that the 3rd respondent had reported 21

vacancies of Clerk Grade I Time keeper Grade II during 2017

to 2018. It is stated in paras 17 and 18 of the counter affidavit

as follows:

17. It is submitted that the Managing Director has informed that it has not been able to operate profitably for the last three financial years. He has further informed that considering the current financial position of the company, W.P.(C).No.4014/2021

hiring more permanent employees will affect the financial security of the company and the company is trying to maximize production by employing less permanent employees. As such the Company is not able to appoint the candidates advised by the Commission to the post. The above argument could not be accepted at any cost. Practices such as reporting vacancies and not issuing orders of appointments on the grounds of financial liability when the vacancies are duly filled up following law could not be encouraged under any circumstances. Such action of the Company cannot be encouraged. The company is bound to appoint all the candidates who are advised by the Commission to the post of Clerk Grade I/Timekeeper Grade-II without any delay as per the directions in the GO dated.

18. It is submitted that the cancellation of advice issued to Malabar Cements Ltd and re advising the candidates to another institution as contended by the petitioners in the writ petition will only result in the reduction of vacancies. This will adversely affect the future of all the candidates included in the list. It will also adversely affect the smooth conduct of the selection process of the Commission. Moreover, doing so may become a norm and other institutions are likely to follow the same in the future. In that case, it will be impossible for the Commission to operate the list as per rules and it may also deprive the right of all other candidates included in the Ranked List honestly waiting for advice.

W.P.(C).No.4014/2021

6. It is further submitted that Ext.P8 reported decision relied on

by the petitioners cannot be treated as authority on the point

that reported vacancies can be refused to be honoured by

public authorities.

7. I have considered the contentions advanced. It is admitted

that 21 vacancies were reported by the 3 rd respondent to the

PSC in 2017-18. PSC has prepared the ranked list taking note

of the said vacancies as well. Advice was made by the PSC, the

3rd respondent now takes the stand that they cannot fill up the

posts due to financial stringency. In view of the fact that the

vacancies had been duly reported to the PSC, the 3 rd

respondent cannot now contend that they do not propose to fill

up the posts. It is apparent that sanction from the Government

is required for reduction/abolition of posts and such sanction

has admittedly not been obtained. Proviso to Rule 27(c) of

Part II KS & SSR reads as follows:-

" xxx xxx xx provided also that the seniority of a person appointed in one service from a common selective list, prepared by the Commission W.P.(C).No.4014/2021

and thereafter discharged from service for want of vacancy and got reappointed in another service or another Department/Institution on further advice of the Commission, shall be determined by the date of first effective advice."

8. In the facts and circumstances of the instant case, though the

learned standing counsel for the Kerala Public Service

Commission submits that there is no want of vacancy, since

the vacancies reported are still in existence, I am of the

opinion that the petitioners who have found place in the

ranked list cannot be made to suffer due to the act of the 3 rd

respondent, which is allegedly due to financial stringency. I

am supported in this view by the directions issued by the

Division Bench of this Court in KSRTC and another v.

Soumya and others [2018 (4) KHC 816].

9. There will, therefore, be a direction to the 3 rd respondent to

immediately appoint the petitioners pursuant to the advice

issued by the Public Service Commission and if they do not

require their services, they shall be discharged for want of

vacancy. The PSC shall thereafter advice them for appointment

in available vacancies in other establishments and the W.P.(C).No.4014/2021

petitioners shall be entitled to reckon their date of advice in

the 3rd respondent in terms of the proviso to Rule 27(c). The

appointment and discharge of the petitioners shall be effected

by the 3rd respondent within a period of four weeks from the

date of receipt of a copy of this judgment.

The writ petition is ordered accordingly.

sd/-

Anu Sivaraman, Judge

sj/svp APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF NOTIFICATION DATED 13.10.2017 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION

EXHIBIT P2 TRUE COPY OF RELEVANT EXTRACT OF RANKED LIST DATED 31.12.2019 FOR CATEGORY NO.399/2017

EXHIBIT P3 TRUE COPY OF PRINTOUT FROM THE PSC WEBSITE SHOWING THE STATUS OF VACANCIES REPORTED TO THE 1ST RESPONDENT

EXHIBIT P4 TRUE COPY OF RELEVANT EXTRACT OF THE APPOINTMENT CHART DATED 29.09.2020

EXHIBIT P5 TRUE COPY OF LETTER DATED 11.11.2020 SENT BY THE PETITIONERS 1,5,7,8 AND 9 TO THE 2ND RESPONDENT

EXHIBIT P6 TRUE COPY OF LETTER DATED 14.12.2020 ISSUED BY 2ND RESPONDENT TO THE 1ST PETITIONER

EXHIBIT P7 TRUE COPY OF LETTER DATED 10.02.2021 ISSUED BY THE PRINCIPAL SECRETARY, INDUSTRIES DEPARTMENT TO THE 1ST PETITIONER

EXHIBIT P8 TRUE COPY OF JUDGMENT DATED 06.09.2018 IN WA NO.1569 OF 2018 RESPONDENTS EXHIBITS

ANNEXURE R3A TRUE COPY OF THE LETTER DATED 31.10.2020 ISSUED TO THE PSC ANNEXURE R3B TRUE COPY OF THE LETTER DATED 4/01/2021 ADDRESSED TO THE SECRETARY INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA.

TRUE COPY PS TO JUDGE