Kerala High Court
Vinod T.P vs The Secretary Kerla Public ... on 8 February, 2021
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942
OP(KAT).No.282 OF 2020
AGAINST THE ORDER IN OA NO.686/2015 DATED 04-10-2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/APPLICANTS 3 TO 5, 7, 10 &12 IN OA:
1 VINOD T.P.
AGED 38 YEARS
S/O.PREMANANDAN,
THOTTATTUVELI, KALAVOOR P.O.,
CHERTHALA,
ALAPPUZHA-688 536.
2 SANILKUMAR.T.M.
AGED 39 YEARS
S/O.MANGALAM,
THATTARA HOUSE,
VANDANAM P.O.,
ALAPPUZHA-688 005.
3 VIMAL MOHAN,
AGED 32 YEARS
S/O.MOHANAN, AYYANAD,
PATTANAKKADU P.O.,
CHERTHALA,
ALAPPUZHA-688 531.
4 VINAYABABU
AGED 42 YEARS
S/O.CHELLAPPAN, EAST VADASSERY,
PUNNAPRA P.O., ALAPPUZHA-688 004.
5 ALEX LOUIS,
AGED 32 YEARS
S/O.P.J.LOUIS,
PUTHENPURAKKAL,
PATHIRAPPALLY P.O.,
OMANAPPUZHA,
OP(KAT).No.282 OF 2020
2
ALAPPUZHA-688 521.
6 SIRAJUDEEN.V.K.
AGED 35 YEARS
S/O.KUNJU ISMAIL,
VELIPARAMBIL,
CMC-32, CHERTHALA P.O.,
ALAPPUZHA-688 524.
BY ADVS.
SRI.P.NANDAKUMAR
SHRI.S.ANEESH
RESPONDENTS/RESPONDENTS & APPLICANTS 1,2,6,8,9, & 11 IN OA:
1 THE SECRETARY KERLA PUBLIC SERVICE COMMISSION
PATTOM, THIRUVANANTHAPURAM-695 004.
2 THE DISTRICT OFFICER.,
KPSC DISTRICT OFFICE,
ALAPPUZHA, CRESCENT MANSION,
SOUTH OF COLLECTORATE,
ALAPPUZHA-688 001.
3 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
4 THE DIRECTOR, DIRECTORATE OF SOCIAL JUSTICE,
VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.
5 THE DISTRICT SOCIAL JUSTICE OFFICER,
NEAR IRON BRIDGE, ALAPPUZHA-688 011.
6 THE DIRECTOR, DIRECTORATE OF URBAN AFFAIRS,
SWARAJ BHAVAN, NANTHANCODE,
THIRUVANANTHAPURAM-695 003.
7 THE CHIEF ENGINEER,
KUTTANAD PACKAGE CIRCLE,
MANCOMPU, ALAPPUZHA-688 503.
8 THE EXECUTIVE ENGINEER,
BUILDING DIVISION (PWD),
COLLECTORATE BUILDING,
OP(KAT).No.282 OF 2020
3
ALAPPUZHA-688 001.
9 THE DEPUTY DIRECTOR OF PANCHAYATH,
CIVIL STATION, ALAPPUZHA-688 001.
10 THE DISTRICT SUPPLY OFFICER,
CIVIL STATION, ALAPPUZHA-688 002.
11 THE DISTRICT OFFICER,
DEPARTMENT OF MINING AND GEOLOGY, MINI CIVIL
STATION, CHERTHALA P.O., ALAPPUZHA-688 524.
12 SUPERINTENDING ENGINEER,
KUTTANAD DEVELOPMENT CIRCLE,
PWD REST HOUSE BUILDING, KOTTAYAM-686 112.
13 CHIEF ENGINEEER,
IRRIGATION AND ADMINISTRATION,
PUBLIC OFFICE BUILDING,
THIRUVANANTHAPURAM-695 033.
14 CHIEF ENGINEER, PWD,
PUBLIC OFFICE BUILDING,
THIRUVANANTHAPURAM-695 033.
15 THE DISTRICT COLLECTOR,
COLLECTORATE, PALACE ROAD,
ALAPPUZHA-688 001.
16 BIJU.J.
AGED 40 YEARS
S/O.JANARDHANAN,
SREESAILAM,
MAHADEVIKADU P.O.,
KARTHIKAPALLY,
ALAPPUZHA-688 516.
17 MURUKADAS.E.D.
AGED 41 YEARS
S/O.DASAPPAN,
EERAKARIYIL, VAYALAR P.O.,
CHARTHALA,
ALAPPUZHA-688 536.
18 GIRISHKUMAR.P.,
AGED 42 YEARS
S/O.PONNAPPAN,
EAST VADASSERY,
OP(KAT).No.282 OF 2020
4
PUNNAPRA P.O.,
ALAPPUZHA-688 004.
19 BIJU.P.G.,
AGED 43 YEARS
S/O.GOPI,
PANASSERIL HOUSE,
KOMMADY WARD, THUMPOLY P.O.,
ALAPPUZHA-688 008.
20 SUMESH.P.S.,
AGED 35 YEARS
S/O.SHANMUGHAN,
PUTHENPURACKAL,
THAICKAL P.O.,
CHERTHALA,
ALAPPUZHA-688 530.
21 BIJUKUMAR.P.T.,
AGED 46 YEARS
S/O.THANKAPPAN,
POZHICKAD HOUSE,
KOMMADY WARD,
THUMPOLY P.O.,
ALAPPUZHA-688 008.
R3-15 BY SR.GOVERNMENT PLEADER SRI.B.VINOD
SRI.P.C.SASIDHARAN,SC,
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 08.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No.282 OF 2020
5
"C.R."
ALEXANDER THOMAS & T.R.RAVI, JJ.
===========================
O.P.(KAT).No.282 of 2020
[arising out of order dated 04.10.2019 in
O.A.No.686 of 2015 of the KAT, Thiruvananthapuram
===========================
Dated this the 08th day of February, 2021
JUDGMENT
Alexander Thomas, J
The prayers in the afore-captioned Original Petition filed
under Article 226 & 227 of the Constitution of India, are as follows:
(See page No.5 of the paper book of this Original Petition).
"(i) To call for the records leading to Exhibit P1 order of the Kerala
Administrative Tribunal in O.A.No.686 of 2015, set aside the same
and allow the OA as prayed for.
(ii) To issue such other orders or directions as this Hon'ble Court
may deem it fit and proper in the circumstances of the case."
2. Heard Sri,.P.Nandakumar, the learned counsel
appearing for the petitioners in the OP/applicants 3 to 5, 7, 10 and
12 in the OA, Sri.P.C.Sasidharan, the learned Standing Counsel for
the Kerala Public Service Commission (PSC) appearing for
respondents 1 and 2 herein, Sri.B.Vinod, the learned Senior
Government Pleader appearing for respondents 3 to 15, contesting
respondents 16 to 21 in this Original Petition are original applicants
OP(KAT).No.282 OF 2020
in the O.A. other than the petitioners herein and who have already
obtained advice. In view of the said submission that the said
contesting respondents in the OP have already secured advice or
appointments and as there is no conflicting interest in this OP and
the said contesting respondents in the OP, as all of them had jointly
prosecuted the application as joint applicants, notices to contesting
respondents 16 to 21 will sand dispensed with.
3. The case of the petitioners herein is that they have been
duly included in Annexure A1 rank list dated 05.01.2011 for the
post of Driver Grade II (Light Duty Vehicle - LDV) for various
departments in Alappuzha District pursuant to the selection
notification issued in that regard by the respondent-PSC and further
that the said rank list has expired on 20.06.2015. The further case of
the petitioners in the O.P is to the effect that based on the interim
order dated 05.06.2015 rendered by the Kerala Administrative
Tribunal, Thiruvananthapuram Bench in the instant O.A No.686 of
2015, 8 vacancies in the post of Driver (LDV) under the
Department-Directorate of Social Justice, under R4 and R5 herein,
were in fact reported by them to the PSC on 16.06.2015, which is
before the expiry of the rank list on 20.06.2015. It is further that the
4th respondent-Directorate of Social Justice has filed Ext.P5 reply
OP(KAT).No.282 OF 2020
statement dated 03.07.2015 before the Tribunal, in the said O.A.,
wherein it has been admitted that there are 14 sanctioned posts of
Driver in the Alappuzha District under the Integrated Child
Development Scheme (ICDS), functioning under the said
Department of Social Justice and as against such 14 sanctioned
posts, 6 persons are working now and the balance vacancies as
against the sanctioned post is 8, the limited attempt made by the
petitioners herein is to the effect that though the main O.A. dealt
with by the Tribunal is in relation to the selection of appointment of
candidates included in Annexure A1 rank list as against the
vacancies in various departments, the focus in this case is mainly in
respect of the alleged vacancies under the Department of Social
Justice, and that no pleas are made as against the other departments
for the reason that none of them had reported vacancies during the
pendency of the O.A, before the expiry of the rank list. Hence, the
petitioners in the O.P. would contend that the limited plea is only in
relation to the 6 alleged vacancies said to be in existence and that 8
vacancies were in fact provisionally reported by the respondent -
Director of Social Justice to the PSC well before the expiry of
Annexure A1 rank list on 20.06.2015 and that the crucial aspect of
the matter has not been taken into consideration while rendering
OP(KAT).No.282 OF 2020
impugned Ext.P1 final order dated 04.10.2019 in the instant
O.A.No.686 of 2015 and that therefore the verdict of the Tribunal to
that limited extent would call for interdiction in the hands of this
Court in respect of the 8 alleged vacancies said to have been in
existence and actually reported to the PSC well before the expiry of
the rank list etc. The stand of the respondent-Department of Social
Justice, has been made out before the Tribunal in Ext.P5 reply
statement dated 03.07.2015 (see page Nos.84 to 89 of this paper
book). Now, pursuant to the directions issued by this Court in this
case, the said respondent-Directorate of Social Justice has filed an
affidavit dated 30.01.2021 in this case before this Court.
4. A reading of Ext.P5 reply statement dated 30.01.2021
filed by the respondent-Directorate of Social Justice before the
Tribunal would indicate as follows:-
"2. It is submitted that there were 14 sanctioned posts of
drivers in Alappuzha District under Social Justice Department
under the Integrated Child Development Scheme. As against
the 14 sanctioned posts, 6 persons are working now. As regards
the remaining 8, two vehicles are already condemned, 3 vehicles
are due for condemnation and only three vehicles are
functioning. The ICDS is a centrally sponsored scheme (C.S.S)
and 90% of its expenditure is being met by Government of
India. Vide letter No.F.No.1-3/2002-CDI (Vol.II) dated
2.4.2003 (copy enclosed), the Govt. of India , as item 5(iv), have
directed the State Government, not to fill the sanctioned posts
of drivers as and when they fall vacant; instead these posts will
stand abolished as and when they fall vacant. The decision
is in line with the decision of not procuring new vehicles under
the ICDS Scheme but only hiring vehicles in future. It is also
instructed that existing functional vehicles may be manned by
OP(KAT).No.282 OF 2020
using available drivers only, by undertaking transfers wherever
necessary. Central Govt. vide letter No.1-4/2014-CDI dtd:
5.6.2014 also reiterated the position as item 4(iv) (copy
enclosed). For ICDS purpose, private vehicles are hired on rent
basis. This decision is in line with the administrative policy of
Govt. of India. Since the vacancies of drivers in Alappuzha
District under ICDS Scheme are abolished/abolishing, the State
Government is not in a position to report such vacancies to
the Public Service Commission, due to the aforesaid facts."
5. In para 2 given on internal page 1 and 2 of Ext.P5 reply
statement (see page Nos.85 and 86 of the paper book), it is stated
that there were 14 sanctioned posts of drivers under the Social
Justice Department in Alappuzha District under the Integrated Child
Development Scheme(ICDS) and as against such 14 sanctioned
posts, 6 persons are now working and as against the remaining 8
posts, two vehicles are already condemned, 3 vehicles are due for
condemnation and only three vehicles are functioning. Further very
crucial it is stated that the ICDS is a centrally sponsored scheme
(C.S.S) and 90% of its expenditure is met by Union Government.
Further that as per letter dated 2.4.2003 issued by the Union
Government (subsequently produced as Annexure R4(a) along with
the aforesaid affidavit dated 30.01.2021 filed by the respondent in
this case before this Court), it has been stated in para 4(iv) given on
internal page 2 of Annexure R4(a) that sanctioned post of drivers
may, henceforth, not be filled up as and when they fall vacant, but
they stand abolished as and when they fall vacant and that this is in
OP(KAT).No.282 OF 2020
line with the decision of not procuring new vehicles under the ICDS
Scheme, but only hiring vehicles in future and necessary instructions
in this regard have already been issued separately vide the said
Department's letter (Department of Women and Child Development
in the Union Government of India in the Ministry of Human
Resources Development etc) . It is pertinent to refer to para 5 (iv)
given on internal page 2 of Annexure R4(a), reads as follows:
"5(iv). Sanctioned posts of Drivers may, henceforth, not be filled up
as and when they fall vacant, but may stand abolished as and when
they fall vacant. This is in the line with the decision of not
procuring new vehicles under the ICDS Scheme, but of only hiring
vehicles in future. Necessary instructions in this regard have
already been issued. Separately vide this Department's letter No.5-
3/2000-CD.1 (Vol.II) dated 07.01.2003. Existing functional
vehicles may be manned by using available (in-place) Drivers only,
by undertaking transfers, wherever necessary. In the contingency
that the number of existing, functional vehicles is/becomes more
than the number of available (in-place) Drivers, a specific
proposal for an appropriate decision under the circumstances may
be sent to the Department of Women & Child Development,
Government of India."
6. Further it is stated in Ext.P5 reply statement that the
decision is in line with the policy decision of not procuring new
vehicles under the ICDS Scheme, but only hiring vehicles in future
and that only existing, functional vehicles may be manned by using
available drivers only, by undertaking transfers wherever necessary.
Further a reference is also made yet another letter dated 05.06.2014
issued by the competent authority in Union Government, which has
OP(KAT).No.282 OF 2020
been produced subsequently as Annexure R4(b) along with the
aforesaid affidavit dated 30.01.2021 filed by the respondent-
department in this case. It is pointed out that in para 4(iv) given on
internal page 2 of Annexure R4(b) letter dated 05.06.2014, the
competent authority of the Union Government of India, Ministry of
Women and Child Development has ordered that sanctioned posts of
drivers may, henceforth, not be filled up as and when they fall
vacant, but may stand abolished as and when they fall vacant. It is
important to refer para No.4(iv) given on internal page No.2 of
Annexure R4(b) letter dated 5.6.2014 reads as follows:-
"4(iv) Sanctioned posts of Drivers, may henceforth, not be filled up as
and when they fall vacant, but may stand abolished as and when they
fall vacant."
7. Hence it is pointed out that since the Union Government
funds 90% of the project and the financial role of the State
Government is to fund 10% of the project, the competent authority
of the Department of Social Welfare, is bound to obey and comply
strictly the directions and instructions issued by the competent
authority of the Union Government in Annexure R4(a) and
Annexure R4(b) letters and therefore, the said so called 8 sanctioned
posts, cannot be filled up and has to be treated as abolished by the
impact of directives issued by the Union Government funding
OP(KAT).No.282 OF 2020
agency of the ICDS Scheme going by the instruction contained in
Annexure R4(a) letter dated 02.04.2003 and Annexure R4(b) letter
dated 5.6.2014 issued by the competent authority-Union
Government, in the Ministry/the Department concerned.
8. Accordingly, it is pointed out by Sri.B.Vinod, learned
Senior Government Pleader appearing for the respondent-State
authorities concerned that the respondent-Directorate of Social
Justice Department has no alternative to strictly obey the directives
of the Union Government in Annexure R4(a) and Annexure R4(b)
and the said so called sanctioned post has been treated as abolished
and cannot be filled up in the manner as prayed for by the original
petitioners by the filling up the same by utilizing the candidates from
among the rank list in question. It is accordingly urged that the
vacancies provisionally reported by the respondent-department only
provisionally compliance with the interim order passed by the
Tribunal and that the said compliance is only provisional and since
the respondent-Social Justice Department cannot fill up these
vacancies, the said requisition was sent on a provisional basis to the
PSC and that too only for compliance of the interim order of the
Tribunal, may be treated as cancelled for all purposes and that no
directions may be issued by this Court to the PSC to advice
OP(KAT).No.282 OF 2020
candidates included in Annexure A1 rank list to fill up those so called
8 vacancies and that consequently no directions may also be issued
to the respondent-Directorate of Social Justice to issue appointment
orders as against the candidates as those vacancies are non-existing
and has to be treated as abolished more so particularly, as they are
only so called post in a project scheme, 90% of which is funded by
the Union Government. The abovesaid factual pleadings are not in
any manner factually rebutted by the petitioners in the O.P.
Presumably, it is only on account of the abovesaid averment in
Ext.P5 reply statement that the Tribunal has also not entered into
those aspects in relation to the alleged 8 vacancies reported
provisionally by the respondent-Department of Social Justice.
9. That apart, it is fine and well settled rulings by the Apex
Court as in Shankarsan Dash v. Union of India [1991(3) SCC 47
: AIR 1991 SC 1612] , para No.7 thereof that 'it is not correct to hold
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 and that ordinarily the notification
merely amounts to an invitation to qualified candidates to apply for
recruitment and on their selection they will not acquire any right to
OP(KAT).No.282 OF 2020
the post and that unless the relevant recruitment rules so indicate,
the State is under the legal duty to fill up all or any of the vacancies
and that it does not mean that the State has the license of acting in
an arbitrary manner. The decision not to fill up the vacancies has to
be taken bona fide and 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 in the recruitment
test and no discrimination can be permitted and the correct position
has been consistently followed by the Apex Court and as can be seen
from the catena of decisions in Haryana v. Subhash Chander
Marwaha [AIR 1973 SC 2216] , Miss. Neelima Shangla v. State
of Haryana [(1986) 4 SCC 268] and Jitendra Kumar v. State of
Punjab [AIR 1984 SC 1850)'. It is pertinent to refer to paragraphs
7 and 8 of the decision of the Apex Court in Shankarsan Dash
case (supra), which read 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 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 license
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
OP(KAT).No.282 OF 2020
correct position has been consistently followed by this Court, and
we do not find any discordant note in the decisions in State of
Haryana v. Subhash Chander Marwaha, (1974) 1 SCR 165 :(AIR
1973 SC 2216), Miss Neelima Shangla v. State of Haryana, (1986) 4
SCC 268 : (AIR 1987 SC 169), or Jitendra Kumar v. State of Punjab,
(1985) 1 SCR 899 : (AIR 1984 SC 1850).
8. In State of Haryana v. Subhash Chander Marwaha, (AIR
1973 SC 2216) (supra) 15 vacancies of Subordinate Judges were
advertised, and out of the selection list only 7, who has secured
more than 55% marks, were appointed, although under the relevant
rules the eligibility condition required only 45% marks. Since the
High Court had recommended earlier to the Punjab Government
that only the candidates securing 55% marks or more should be
appointed as Subordinate Judges, the other candidates included in
the select list were not appointed. They filed a writ petition before
the high Court claiming a right of being appointed on the ground
that vacancies existed and they were qualified and were found
suitable. The writ application was allowed. While reversing the
decision of the High Court, it was observed by this Court that it was
open to the Government to decide how many appointments should
be made and although the High Court had appreciated the position
correctly, it had "somehow persuaded itself to spell out a right in
the candidates because in fact there were 15 vacancies". It was
expressly ruled that the existence of claim of some of the
candidates selected for appointment, who were petitioners in
Jitendra Kumar v. State of Punjab, (AIR 1984 SC 1850), was turned
down holding that it was open to the Government to decide how
many appointments would be made. The plea of arbitrariness was
rejected in view of the facts of the case and it was held that the
candidates did not acquire any right merely by applying for
selection or even after selection. It is true that the claim of the
petitioner in the case of Miss Neelima Shangla v. State of Haryana,
(AIR 1987 SC 169) was allowed by this Court but not on the ground
that she had acquired any right by her selection and existence of
vacancies. The fact was that the matter has been referred to the
Public Service Commission which sent to the Government only the
names of 17 candidates belonging to the general category on the
assumption that only 17 posts were to be filled up. The Government
accordingly made only 17 appointments and stated before the court
that they were unable to select and appoint more candidates as the
commission had not recommended any other candidate. In this
background it was observed that it is, of course, open to the
Government not to fill up all the vacancies for a valid reason, but
the selection cannot be arbitrarily restricted to a few candidates
notwithstanding the number of vacancies and the availability of
qualified candidates; and there must be a conscious application of
mind by the Government and the High Court before the number of
persons selected for appointment is restricted. The fact that it was
not for the Public Service Commission to take a decision in this
OP(KAT).No.282 OF 2020
regard was emphasised in this judgment. None of these directions,
therefore, supports the appellant."
10. A Full Bench of this Court in the recent decision
rendered in Kerala Public Service Commission and another
v. Sheejamol M.C. and others [2020(5) KHC 555 (FB] as held
in paragraphs 12 and 13 are as follows:-
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 bonafide 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 v. Union of India, and we do not see any other
judgement 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 v Subash Chander Marwaha [(1974) 3 SCC 220] :
[1973 SCC (L&S) 488 : (1974) 1 SCR 165, , Neelima Shangla v.
State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759 and
Jatinder Kumar v. 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
OP(KAT).No.282 OF 2020
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. 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 v Subash Chander Marwaha [(1974) 3 SCC 220] :
[1973 SCC (L&S) 488 : (1974) 1 SCR 165, , Neelima Shangla v.
State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759 and
Jatinder Kumar v. 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) xxxxxxx
(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. Having answered the reference, we direct the
Registry to place these writ appeals before the appropriate
Bench for disposal. ''
11. In the light of these aspects, the abovesaid submissions
OP(KAT).No.282 OF 2020
made by the learned Senior Government Pleader would merit our
acceptance that the so called 8 sanctioned posts have been treated as
abolished, in view of the directions issued by the Union Government
as per Annexure R4(a) and Annexure R4(b) letters and more so
particularly, as the so called posts are only attached to a project
Scheme 90% of which is funded by the Union Government and if
the said directives are disobeyed by the respondent-Director of
Social Justice, then it might invite strict action from the funding
authority to temporarily or permanently withhold the funds etc,
which would be very detrimental to the very functioning of the ICDS,
which is the key activity of the Department of the Women and Child
Development both under the State Government Level and the Union
Government Level. Now, the Social Justice Department forms part
of the re-designated department of Women and Child Development
after the bifurcation of the erstwhile integrated department of Social
Justice. These aspects of matter borne out from Annexure R4(a) and
Annexure R4(b) and also reiterated in the affidavit dated 30.01.2021
filed by the respondents 4 and 5 in this Original Petition.
12. Hence, we are unable to grant any of the prayers
canvassed by the petitioners in the present O.P.
13. However, Sri.P.Nandakumar, the learned counsel
OP(KAT).No.282 OF 2020
appearing for the petitioners would submit on instructions that
though the respondent-department authorities would piously place
reliance on the so called abolition of posts in terms of Annexure
R4(a) and Annexure R4(b) letters, it is reliably learnt that even now
daily wage persons and provisional persons are being engaged by the
respondent-Department of Social Justice, as drivers to cater to their
travel requirements and that the said practice is illegal and would
amount to violating the directives issued by the Union Government
as per Annexure R4(a) and Annexure R4(b), since the stand that the
so called vacancies in question stand abolished etc.
14. In that regard Sri. P.Nandakumar, the learned counsel
appearing for the petitioners would also place reliance on the
decision of this Court in Kerala State Road Transport
Corporation and Another v. Soumya and Others [2018 (4)
KHC 816 (DB), as held in paragraph 17, which reads as follows:-
" 17. Needless to say, the KSRTC would not be in a position to fill up
the 209 vacancies involved herein in any manner, be that
temporary, adhoc, contract or such other; and that for all practical
purposes, it would be deemed that these vacancies are now
abolished."
15. In the light of the specific stand taken by the respondent-
Department of Social Justice as well as the Union Government, the
Union Ministry concerned as per Annexure R4(a) and Annexure
OP(KAT).No.282 OF 2020
R4(b) it is ordered that none of the posts covered by para 5(iv) of
Annexure R4(a) letter dated 2.4.2003 and para No.4(iv)of Annexure
R4(b) letter dated 5.6.2014 shall be utilized in any manner by the
respondent-Director of Department of Social Justice either for
utilizing them on regular basis or by provisional employees or daily
wage employees or contractual employees. From a reading of
Annexure R4(a) and Annexure R4(b) it is seen that the consistent
stand of the Union Government is that if there is real requirement
for use of vehicle, then hiring of vehicles may be resorted to. Hence,
if the respondent-Department of Social Justice, is constrained to
resort to use of vehicles, then it is for them to resort to the method of
hiring of vehicle as permitted by the Union Government in Annexure
R4(a) and Annexure R4(b). If that be so, prima facie, it appears that
steps may be taken by the respondent-Department of Social
Justice/Women and Child Development after consultation with the
local bodies concerned as to whether some arrangement of taxi pool
could be formed by utilizing the services of persons, if any, who have
been earlier engaged as provisional drivers/daily wage drivers etc.,
or some such other reasonable method so as to ensure that the
department would resort to effective hiring of vehicles so as to fulfill
their requirements and at the same time, the directives issued by the
OP(KAT).No.282 OF 2020
Union Government are complied.
With these observations and directions it is ordered that the
main prayer in the OP fails and in the light of the above aspects, it is
ordered that the original Petition stands dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R.RAVI, JUDGE
dlk/09.02.2021
OP(KAT).No.282 OF 2020
APPENDIX
PETITIONERS EXHIBITS:
EXHIBIT P1 TRUE COPY OF ORDER DATED 04.10.2019 IN OA
NO.686 OF 2015 ON THE FILE OF THE KERALA
ADMINISTRATIVE TRIBUNAL.
EXHIBIT P2 TRUE COPY OF OA (EKM) NO.686 OF 2015.
ANNEXURE A1 TRUE COPY OF RANKED LIST FOR THE POST OF
DRIVER GRADE II FOR VARIOUS DEPARTMENTS IN
ALAPPUZHA.
ANNEXURE A2 TRUE COPY OF THE APPOINTMENT CHART.
ANNEXURE A3 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
30.11.2014.
ANNEXURE A4 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
07.11.2014.
ANNEXURE A5 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
21.10.2014.
ANNEXURE A6 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
06.03.2015.
ANNEXURE A7 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
05.11.2014.
ANNEXURE A8 TRUE COPY OF CIRCULAR
NO.10336/ADV.C3/2014/P & ARD DATED
23.07.2014.
ANNEXURE A9 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
21.11.2014.
ANNEXURE A10 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
05.11.2014.
ANNEXURE A11 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
29.10.2014.
ANNEXURE A12 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
05.03.2015.
EXHIBIT P3 TRUE COPY OF MA NO.1417 OF 2015.
ANNEXURE A13 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
OP(KAT).No.282 OF 2020
16.03.2015.
ANNEXURE A14 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
28.03.2015.
EXHIBIT P4 TRUE COPY OF MA NO.1478 OF 2015.
ANNEXURE A15 TRUE COPY OF APPLICATION UNDER RTI ACT.
ANNEXURE A16 TRUE COPY OF THE REPLY UNDER RTI ACT DATED
10.03.2015.
EXHIBIT P5 TRUE COPY OF THE REPLY STATEMENT FILED BY
4TH RESPONDENT IN THE OA.
EXHIBIT P6 TRUE COPY OF THE REPLY STATEMENT FILED BY
7TH RESPONDENT IN THE OA.
ANNEXURE R7(A) TRUE COPY OF LETTER NO.B7-27082/2013 DATED
01.11.2013.
ANNEXURE R7(B) TRUE COPY OF LETTER NO.E1-1126(B)/KP DATED
04.11.2013
ANNEXURE R7(C) TRUE COPY OF LETTER NO.E2-88/2015//KP DATED
20.03.2015.
ANNEXURE R7(D) TRUE COPY OF LETTER NO.E2-88/2015//KP DATED
06.03.2015.
EXHIBIT P7 TRUE COPY OF THE REPLY STATEMENT FILED BY
11TH RESPONDENT IN THE OA.
ANNEXURE R11(A) TRUE COPY OF LETTER NO.ARI(4)122/06 DATED
09.06.2015.
ANNEXURE R11(B) TRUE COPY OF LETTER NO.5973/E2/2015 DATED
04.07.2015.
ANNEXURE R11(C) TRUE COPY OF ORDER NO.542/2015-
16/5973/E2/2015 DATED 16.11.2015.
EXHIBIT P8 TRUE COPY OF THE REPLY STATEMENT FILED BY
13TH RESPONDENT IN THE OA.
ANNEXURE R13(A) TRUE COPY OF GOVERNMENT LETTER
NO.4758/R1/2007/P & ARD DATED 14.01.2009.
EXHIBIT P9 TRUE COPY OF MA NO.822 OF 2019.
ANNEXURE A17 TRUE COPY OF REPLY UNDER RTI ACT DATED
OP(KAT).No.282 OF 2020
08.03.2019.
ANNEXURE A18 TRUE COPY OF REPLY UNDER RTI ACT DATED
23.03.2019.
ANNEXURE A20 TRUE COPY OF REPLY UNDER RTI ACT DATED
27.03.2019.
ANNEXURE A21 TRUE COPY OF REPLY UNDER RTI ACT DATED
26.12.2018.
ANNEXURE A22 TRUE COPY OF REPLY UNDER RTI ACT DATED
25.03.2019.
ANNEXURE A23 TRUE COPY OF REPLY UNDER RTI ACT DATED
27.03.2019.
ANNEXURE A24 TRUE COPY OF REPLY UNDER RTI ACT DATED
22.03.2019.
ANNEXURE A25 TRUE COPY OF REPLY UNDER RTI ACT DATED
11.03.2019.
EXHIBIT P10 TRUE COPY OF REJOINDER FILED BY THE
PETITIONER TO THE REPLY STATEMENT OF THE
RESPONDENTS.
RESPONDENTS ANNEXURES
ANNEXURE R4(A) TRUE COPY OF LETTER NO.F.NO.1-3/2002-CD-
1(VOL.II) DATED 02.04.2003
ANNEXURE R4(B) TRUE COPY OF LETTER NO.1-4/2014-CDI OF
MINISTRY OF WOMEN AND CHILD DEVELOPMENT
DATED 05.06.2014
