Kerala High Court
Kerala Public Service Commission vs Abdul Haris.B on 11 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 11TH DAY OF JANUARY 2023/21ST POUSHA, 1944
O.P(KAT).NO.415 OF 2022
AGAINST THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL IN O.A.(EKM)
NO.284/2022 DATED 20/10/2022
PETITIONERS/RESPONDENTS:
1 KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY, KPSC OFFICE,
THULASI HILL, PATTOM, THIRUVANANTHAPURAM,
PIN-695004, KERALA.
2 THE SECRETARY
KERALA PUBLIC SERVICE COMMISSION, KPSC OFFICE,
THULASI HILL, PATTOM, THIRUVANANTHAPURAM,
PIN-695004, KERALA.
BY SRI.P.C.SASIDHARAN, SC, KPSC
RESPONDENT/APPLICANT:
ABDUL HARIS.B
AGED 32 YEARS, S/O MOHAMMED.A., BAYADI HOUSE,
KUDAL MERKALA (POST), MANAGALPADY (VIA),
KASARGOD- 671224, PH: 8606704438.
BY ADV.SMT.A.ARUNA
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P.(KAT).NO.415 OF 2022 :: 2 ::
JUDGMENT
A.K. Jayasankaran Nambiar, J.
The Kerala Public Service Commission and its Secretary are the
petitioners before us impugning the order dated 20.10.2022 of the
Kerala Administrative Tribunal in O.A.No.1284 of 2022. The brief facts
necessary for disposal of the O.P.(KAT) are as follows:
The applicant before the Tribunal is the person who had
responded to the Notification dated 12.4.2016 published by the Kerala
Public Service Commission [PSC] for the post of Assistant (Kannada
Knowing) in the PSC. Pursuant to the selection process, he was
ranked first in the supplementary list prepared for candidates in the
Muslim community. The rank list for the post was brought into force
on 10.3.2020 and is valid till 9.3.2023. During the currency of the rank
list, two vacancies were identified in the post of Assistant (Kannada
Knowing) and the said two vacancies were available for advice. The
first vacancy was reserved for appointment by a differently abled
candidate of the low vision category. Inasmuch as there was no
O.P.(KAT).NO.415 OF 2022 :: 3 ::
candidate of the differently abled/low vision category available in the
rank list, the said vacancy was set apart to be filled from the next rank
list published for the post in accordance with Section 34(2) of the
Persons with Disabilities (Equal opportunities, Protection of Rights and
Full Participation) Act, 2016 and Circular No.3/2013 issued by the PSC
in consonance with the aforesaid Act. The second vacancy was filled
by advising Smt.Remya K.R., and she joined duty in the Office of the
PSC on 12.8.2020. The said candidate however availed Leave Without
Allowance [LWA] from 1.3.2022 to 30.4.2022 and from 1.5.2022 to
31.7.2022 and yet again from 1.8.2022 to 30.9.2022. She then
applied for maternity leave from 1.10.2022 to 29.3.2023, and the said
maternity leave was also processed by the PSC. The case of the
applicant before the Tribunal was essentially that inasmuch as the
leave vacancy that arose consequent to the leave availed by
Smt.Remya K.R. enured for more than three months, the PSC, as an
employer, was required to report the said leave vacancy to the PSC, as
the recruitment agency, in accordance with the provisions of Note (1)
to Rule 5 of Part II of the Kerala State and Subordinate Services Rules
[KS & SSR] read with the Government orders issued from time to time.
It was, in particular, pointed out that the applicant, being a member of
the Muslim community and ranked first in the supplementary list
O.P.(KAT).NO.415 OF 2022 :: 4 ::
prepared by the PSC, he would not get another chance to obtain
employment if his case was not considered for appointment to the
leave vacancy in question.
2. In the reply statement filed on behalf of the PSC before the
Tribunal, the stand taken was that the PSC had taken a conscious
decision as an employer not to fill up the leave vacancy in question
since the total sanctioned strength of the post in the PSC was only
two, and if one vacancy was reported owing to the fact that the Officer
who joined duty had availed leave for more than six months, it would
lead to the appointment of another candidate from the rank list and
since there was only two sanctioned posts of Assistant (Kannada
Knowing), the applicant, if appointed, would have to vacate the post on
Smt.Remya K.R. rejoining duty. This would, in turn, create a situation
where the applicant would then have to be treated as 'thrown out' for
want of vacancies in the post, and there would be no fresh vacancies in
the post till 2044 when Smt.Remya K.R. would retire from service in
the usual course. It was further pointed out that, as per the existing
staff pattern, the promotion of Smt.Remya K.R. in service would occur
only after 15 years, and hence, there was no realistic chance for the
occurrence of another vacancy in the near future. It was further
O.P.(KAT).NO.415 OF 2022 :: 5 ::
pointed out that the applicant had a right to be advised only against
vacancies that were reported to the PSC during the currency of the
rank list in which he featured, and inasmuch as there was no such
vacancy reported to the PSC as a recruitment agency, the applicant
could not claim any right for filling up the alleged vacancy to the post.
3. The Tribunal that considered the matter, found that
Smt.Remya had availed LWA for the period from 1.3.2022 to 30.9.2022
and thereafter she had submitted an application for maternity leave
from 1.10.2022 to 29.3.2023 in continuation of the LWA and that the
same was under process in the Office of the PSC. The Tribunal was
therefore of the view that this was a case which attracted the provision
of Note (2) to Rule 5 of Part II of the KS & SSR, and since the total
leave period availed by Remya K.R. was well beyond six months, the
PSC had necessarily to report the leave vacancy in the post of
Assistant (Kannada Knowing) so that the applicant could be advised
against the said vacancy in accordance with the Rules of
Rotation/Reservation.
4. We have heard Sri. P.C.Sasidharan, the learned Standing
counsel for the PSC and Smt. A.Aruna, the learned counsel appearing
O.P.(KAT).NO.415 OF 2022 :: 6 ::
on behalf of the respondent.
5. The contention of Sri. P.C.Sasidharan, the learned counsel for
the petitioner PSC is essentially that the decision as to whether or not
a vacancy in the Organization should be filled through direct
recruitment is one that has to be taken by the employer, which, in the
instant case, is the PSC itself. It is his contention that inasmuch as the
PSC had taken a conscious decision not to fill up the leave vacancy
that arose in the post of Assistant (Kannada Knowing) primarily on
account of the fact that the vacancy in question was a leave vacancy
and also because filling such a vacancy would result in creation of
preferential rights for future appointments to the post in question
immediately on the re-joining of the regular incumbent, which
preferential right could not be exercised by the applicant till 2044, i.e.,
22 years later, the Tribunal could not have compelled the PSC to fill up
the post by advising the applicant to the said leave vacancy that arose
in the post. It is also pointed out that Note (2) to Rule 5 had no
application to the instant case since the said Rule applied only in
situations where a vacancy had to be filled by considering the claims
of direct recruits and by-transfer appointees which was not the case of
the applicant before the Tribunal. With specific reference to the Note
O.P.(KAT).NO.415 OF 2022 :: 7 ::
below the said Rule, he points out that the mandate in the Note to
treat temporary vacancies of more than six months duration as
substantive vacancies in a cadre applied only in the situation
envisaged under Rule 5 and not otherwise. It is his contention
therefore that the reliance by the Tribunal on the Note to Rule 5 was
misplaced, and in the absence of the said Rule, there was no legal
basis or justification for directing the advice of the applicant to the
leave vacancy in question. He also relies on the judgment of the Full
Bench of this Court in Kerala Public Service Commission v.
Sheejamol - [2020 (5) KLT 718] to contend that an Appointing
Authority cannot be compelled to fill up vacancies from a rank list
prepared by the PSC even if the Appointing Authority does not intend
to fill up the vacancy for genuine and bona fide reasons. Reliance is
also placed on the decisions of the Supreme Court in SLP (C)
Nos.24214 - 24221 of 2019 to point out that it is only against
vacancies that are reported to the PSC that a candidate can have a
semblance of a right, and as far as vacancies that are not reported to
the PSC are concerned, the candidates cannot claim a right per se.
6. Per contra, Smt. A.Aruna, the learned counsel for the
respondent/applicant would reiterate her contention before the
O.P.(KAT).NO.415 OF 2022 :: 8 ::
Tribunal with regard to the applicability of Note (2) to Rule 5 of Part II
KS & SSR, and in addition rely on the provisions of the Government
Order dated 6.9.1991 which issues instructions with regard to the
manner in which the Heads of Department under the State
Government had to report vacancies to the various posts, to the PSC.
She contends that the PSC, as an employer, was obliged to report the
leave vacancy for filling up from among the candidates in the rank list
prepared by the PSC, as the recruitment agency, and the directions
issued by the Tribunal cannot be found fault with.
7. On a consideration of the rival submissions and on a perusal
of the pleadings on record, we find ourselves unable to sustain the
impugned order of the Tribunal. It is evident from a reading of the
impugned order that the Tribunal placed reliance on the provisions of
Note (2) of Rule 5 of Part II KS & SSR to treat the leave vacancy as a
vacancy that was required to be reported by the PSC, as an employer,
to the PSC, as the recruitment agency, for the purposes of filling up
from among candidates empaneled in the rank list. As rightly pointed
out by the learned counsel for the petitioner herein, Note (2) to Rule 5
applies only in those situations which are contemplated in Rule 5
where the normal method of recruitment to any service, class or
O.P.(KAT).NO.415 OF 2022 :: 9 ::
category is neither solely by direct recruitment nor solely by transfer,
but is both by direct recruitment and by transfer. Since, admittedly
the said situation does not arise in the instant case, the method of
recruitment being solely by direct recruitment, the Note to the said
Rule can have no application on the facts of the instant case. That
apart, we also find that it is well settled that a candidate included in a
rank list prepared by the PSC can have a claim for appointment only to
those vacancies that are reported to the PSC. If there are any
vacancies that are not reported to the PSC pursuant to a conscious
decision taken by the employer to not do so, then the PSC, as a
recruitment agency, has necessarily to defer to the decision of the
employer. In the instant case, we find that the PSC, in its capacity as
an employer, had taken a conscious decision not to fill up the leave
vacancy that arose in the post of Assistant (Kannada Knowing) since
they had already filled up the post on regular basis and the leave
vacancy was to enure only for a short period after which the regular
incumbent would rejoin service. The decision of the PSC, as an
employer, was not to fill up the leave vacancy of short duration and the
said decision has to be respected so long as we find that it is not
vitiated by mala fide or taken on irrelevant instructions. We therefore
allow the O.P.(KAT), by setting aside the impugned order of the
O.P.(KAT).NO.415 OF 2022 :: 10 ::
Tribunal, and dismissing the O.A. as devoid of merit. We might
observe however that if the PSC decides to engage/employ any person
on daily wage/contract basis to the leave vacancy in question they
shall consider the candidature of the respondent herein for such
engagement/employment before considering any other person.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
MOHAMMED NIAS C.P.
JUDGE
prp/12/1/23
O.P.(KAT).NO.415 OF 2022 :: 11 ::
APPENDIX OF O.P(KAT).NO.415/2022
PETITIONERS ANNEXURES:
Annexure A1 ANNEXURE A1:- TRUE COPY OF THE NOTIFICATION
FOR CATEGORY NO. 46/2016 ISSUED BY THE 2ND
RESPONDENT PUBLISHED IN THE GAZETTE DATED
12.04.2016
Annexure A2 ANNEXURE A2:- TRUE COPY OF THE RANKED LIST
NO. 121/020/ER/VIII(3) FOR THE CATEGORY NO.
46/2016 PUBLISEHD WITH EFFECT FROM
10.03.2020 BY THE 1ST RESPONDENT
Annexure A3 ANNEXURE A3:- TRUE COPY OF THE APPOINTMENT
CHART NO. RIA(1) 11343/18/GW ISSUED BY THE
2ND RESPONDENT
Annexure A4 ANNEXURE A4:- TRUE COPY OF THE CIRCULAR NO.
1695/ST4/78/GAD/1978
Annexure A5 ANNEXURE A5:- TRUE COPY OF THE CIRCULAR NO.
141096/ST/86/GAD DATED 13.11.1986
Annexure A6 ANNEXURE A6:- TRUE COPY OF HTE CIRCULAR NO.
PRC3/174/2021/P&ARD DATED 05.10.2021
Annexure A7 ANNEXURE A7:- TRUE COPY OF THE
REPRESENTATION DATED 04.08.2022 FILED BY
THE APPLICANT WITH THE 2ND RESPONDENT
Exhibit P1 EXHIBIT P1:- THE TRUE COPY OF THE ORIGINAL
APPLICATION IN O.A(EKM) NO.1284/2022 FILED
BEFORE THE TRIBUNAL
O.P.(KAT).NO.415 OF 2022 :: 12 ::
Exhibit P2 EXHIBIT P2:- THE TRUE COPY OF THE REPLY
STATEMENT DATED 20/10/2022 FILED BY THE
COMMISSION IN OA EKM 1284/2022
Exhibit P3 EXHIBIT P3:- THE TRUE COPY OF THE ORDER
DATED 20/10/2022 IN O.A(EKM) NO.1284/2022
RESPONDENT'S ANNEXURES: NIL.
//TRUE COPY//
