Kerala High Court
Vidya R vs Dhanuja Krishnan on 1 August, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
1
OP(KAT) Nos.449 of 2018 and 354 of 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
OP(KAT) NO. 449 OF 2018
AGAINST THE ORDER DATED 08.06.2018 IN OA NO.759 OF 2018 OF
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
------
PETITIONERS:
1 KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY THE SECRETARY, PATTOM PALACE P.O.,
THIRUVANANTHAPURAM-695 016, KERALA.
2 THE DISTRICT OFFICER,
KERALA PUBLIC SERVICE COMMISSION, DISTRICT
OFFICE, KOLLAM CORPORATION BUILDING,
ANDAMUKKOM, KOLLAM-691 001, KERALA.
BY ADV P.C.SASIDHARAN
RESPONDENTS:
1 DHANUJA KRISHNAN, AGED 31 YEARS, W/O.SUMESH.S.,
RESIDING AT KRISHNALAYAM, ASHTAMUDY P.O.,
KOLLAM, KERALA-691 602.
2 STATE OF KERALA, REPRESENTED BY THE CHIEF
SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM-695 001, KERALA.,
3 DIRECTOR OF HEALTH SERVICES,
DIRECTORATE OF HEALTH SERVICES,
THIRUVANANTHAPURAM-695 035, KERALA.
4 DISTRICT MEDICAL OFFICER,
KOLLAM CIVIL STATION, KOLLAM-691 001,
KERALA.
2
OP(KAT) Nos.449 of 2018 and 354 of 2019
ADDL.R5 ANEESH A. AGED 27 YEARS
S/O. ASHOKAN, AYIRAMVALALIL, ALUMKADAVU P.O.,
KARUNAGAPPALLY, KOLLAM DISTRICT.
ADDL.R6 SHANUJ KHAN, AGED 27 YEARS, S/O. SHAJAHAN,
AALAYIL VADAKKETHIL, MUKKOM, MAYYANAD P.O.,
KOLLAM DISTRICT.
ADDL.R7 VIDYA R., AGED 32 YEARS, D/O. RAJENDRAN S.,
SOUPARNIKA, ISLAND NAGAR-81, ULIYAKOVIL P.O.,
KOLLAM DISTRICT-691019.
ADDL.R8 SOBHI S. DER.,
AGED 37 YEARS, D/O. SAHADEVAN, PANAVILA VEEDU,
PERUMPUZHA P.O., KOLLAM DISTRICT-691504.
ADDL.R9 AMRUTHA R. SATHYAN,
AGED 33 YEARS, D/O. SATHYADEVAN, SARADAMANDIRAM,
NEDUMPANA P.O., KOLLAM DISTRICT.
ADDL.R10 SIMI M.P.,
AGED 42 YEARS, D/O. MOHANAN S., VELLAMANALIL
VEEDU, ULIYAKOVIL, KOLLAM DISTRICT.
ADDL.R11 SIMI J., AGED 35 YEARS, D/O. JINACHANDRAN,
MANOJ BHAVAN, CHERIKONAM, KANNANALLOOR P.O.,
KOLLAM DISTRICT.
ADDL.R12 SALINI L., AGED 36 YEARS, D/O. SASIDHARAN N.,
SREERAJARANGOM, KALLELIBHAGOM, KARUNAGAPPALLY.
ADDL.R13 REENA MOL K, AGED 25 YEARS, D/O. KUNJUMOL,
JO BHAVANAM, MARUTHAMONPALLY, POOYAPALLY P.O.,
PIN-691537.
ADDL.R14 MARY RANI T.M., AGED 30 YEARS, D/O. THOMAS
KURIAN, MIJO BHAVAN, ALUMMOODU P.O.,
MUKHATHALA, KOLLAM DISTRICT-671577.
ADDL.R15 REKHA S. NAIR, AGED 37 YEARS, D/O. R.SASIDHARAN
PILLAI, VENKALATHU KIZHAKKATHIL PUTHEN VEEDU,
PULAMON (P.O.), KOTTARAKKARA, KOLLAM, PIN-691531.
ADDL.R16 ANUPAMA S., AGED 27 YEARS, D/O. SOMARAJAN (LATE),
THUNDUVILA VEEDU, PALLIMON P.O.,
KOLLAM DISTRICT-691576.
3
OP(KAT) Nos.449 of 2018 and 354 of 2019
(ADDITIONAL RESPONDENTS R5 TO R16 ARE IMPLEADED
AS PER ORDER DATED 04/09/2019 IN IA 1/19 IN
OP(KAT) 449/18)
ADDL.R17 SHEEJA A, AGED 41 YEARS, W/O.K P ALEX, LOVE
SHORE, AMBALAKKARA P.O., VALAKOM, KOTTARAKKARA,
KOLLAM -691532
(ADDITIONAL RESPONDENTS R17 AND R18 ARE IMPLEADED
AS PER ORDER DATED 04.07.2024 IN IA 1/2024 IN
OP(KAT)449/2018)
ADDL.R18 MINI LUKOSE, AGED 42 YEARS, W/O SHIBU THANKACHAN,
BIJU BHAVAN, PANGODU, VELIYAM P.O.,
KOLLAM-691540.
(ADDITIONAL RESPONDENTS R17 AND R18 ARE IMPLEADED
AS PER ORDER DATED 04.07.2024 IN IA 1/2024 IN
OP(KAT)449/2018)
BY ADVS.
SRI.SAJU JOHN
SRI.M.V.THAMBAN
P.NANDAKUMAR
SRI.R.REJI
SRI.V.VARGHESE
SRI.JELSON J.EDAMPADAM
SMT.THARA THAMBAN
SRI.ARUN BOSE
SRI.B.BIPIN
VIVEK VIJAYAKUMAR
SILPA SREEKUMAR
MERIN K JIMMY
BY SENIOR GOVERNMENT PLEADER, SMT.VINITHA B.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 22.07.2024, ALONG WITH OP(KAT).354/2019, THE COURT
ON 01.08.2024 DELIVERED THE FOLLOWING:
4
OP(KAT) Nos.449 of 2018 and 354 of 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
OP(KAT) NO. 354 OF 2019
AGAINST THE ORDER DATED 08.06.2018 IN OA(EKM) NO.759 OF
2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
-----
PETITIONERS:
1 VIDYA R., AGED 32 YEARS,
D/O.RAJENDRAN S., SOUPARNIKA, ISLAND NAGAR-81,
ULIYAKOVIL P.O., KOLLAM - 691 019.
2 ANEESH A., AGED 27 YEARS,
S/O.ASHOKAN, AYIRAMVALALIL, ALUMKADAVU P.O.,
KARUNAGAPPALLY, KOLLAM DISTRICT,
PIN - 690 573.
3 SHANUJ KHAN, AGED 27 YEARS,
S/O.SHAJAHAN, AALAYIL VADAKKETHIL, MUKKOM,
MAYYANAD P.O., KOLLAM DISTRICT, PIN - 691 303.
4 AMRUTHA R.SATHYAN, AGED 33 YEARS
D/O.SATHYADEVAN, SARADAMANDIRAM, NEDUMPANA P.O.,
KOLLAM DISTRICT, PIN- 691 576.
BY ADVS.
M.V.THAMBAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.B.BIPIN
SRI.ARUN BOSE
RESPONDENTS:
1 DHANUJA KRISHNAN, AGED 31 YEARS,
W/O.SUMESH S., RESIDING AT KRISHNALAYAM,
ASHTAMUDY P.O., KOLLAM - 691 602.
5
OP(KAT) Nos.449 of 2018 and 354 of 2019
2 STATE OF KERALA, REPRESENTED BY THE CHIEF
SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001, KERALA.
3 KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY THE SECRETARY, PATTOM PALACE P.O.,
THIRUVANANTHAPURAM - 695 016, KERALA.
4 THE DISTRICT OFFICER,
KERALA PUBLIC SERVICE COMMISSION, DISTRICT
OFFICE, KOLLAM CORPORATION BUILDING, ANDAMUKKOM,
KOLLAM - 691 001, KERALA.
5 DIRECTOR OF HEALTH SERVICES,
DIRECTORATE OF HEALTH SERVICES,
THIRUVANANTHAPURAM - 695 035, KERALA.
6 DISTRICT MEDICAL OFFICER,
KOLLAM CIVIL STATION, KOLLAM - 691 001,
KERALA.
BY ADVS.
SRI.SAJU JOHN
BY SENIOR GOVERNMENT PLEADER. SRI.BIJOY CHANDRAN
SRI.P.C.SASIDHARAN, SC, KPSC
SRI.V.VARGHESE
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 22.07.2024, ALONG WITH OP(KAT).449/2018, THE COURT
ON 01.08.2024 DELIVERED THE FOLLOWING:
6
OP(KAT) Nos.449 of 2018 and 354 of 2019
JUDGMENT
[OP(KAT) Nos.449/2018, 354/2019]
Harisankar V. Menon, J.
These two connected original petitions under Articles 226
and 227 of the Constitution of India have been filed challenging
the directions contained in the order dated 08.06.2018 in OA(EKM)
No.759 of 2018 by the Kerala Administrative Tribunal,
Thiruvananthapuram (for short, the 'Tribunal'). OP(KAT) No.449 of
2018 is filed by the respondents in OA(EKM) No.759 of 2018
against the applicant before the Tribunal. OP(KAT) No.354 of 2019
is filed by the petitioners who were not parties to the original
application before the Tribunal, pointing out that they have been
included in the ranked list for appointment to the post of Staff
Nurse Grade-II in Kollam District, that came into effect from
16.07.2018 and on account of the order issued by the Tribunal in
the original application filed as above, they are prejudicially
effected.
2. The short facts necessary for the disposal of these original
petitions, as culled down from OP(KAT) No.449 of 2018 are as
under:
The respondent in the original petition-applicant before the
OP(KAT) Nos.449 of 2018 and 354 of 2019
Tribunal had applied to the post of Staff Nurse Grade-II in the
Health Services Department of the State Government. Pursuant to
the exams conducted for each of the Districts in Kerala separately,
the first respondent herein was included in Annexure A1 ranked
list at rank No.124. The ranked list came into force with effect
from 30.10.2013 and was to expire on 30.10.2016. The validity of
the ranked list was, however, extended till 31.12.2016 by the
Kerala Public Service Commission (for short, 'KPSC'). On
30.12.2016, KPSC again issued a notification to extend the rank
lists which were to expire, for a further period of six months from
31.12.2016. However, there was a condition attached to such
extension to the effect that, the extension would not be applicable
to those rank lists whose validity period had already been
extended by notification dated 29.06.2016 and was to expire on
31.12.2016. On account of the above condition attached to the
notification, Annexure A1 ranked list with respect to Kollam
District was not extended, whereas, the ranked lists with respect
to certain other Districts were granted the extension.
3. The condition as above, was the subject matter of
challenge before this Court in W.P(C) No.4178 of 2017. By a
judgment dated 19.06.2017 reported as Gopakumar N. and
others v. State of Kerala and another (ILR 2017 (4) Ker
OP(KAT) Nos.449 of 2018 and 354 of 2019
500), it was found as under:
"21. In these circumstances of the case, the decision leading
to Ext.P18 can only be found to be one arrived at without
considering relevant factors. The allegation of the petitioners
that the PSC has adopted such a procedure for the first time
in its history is not disputed. It is pertinent to note that there
is no denial of the allegations raised by the petitioners
regarding the extension by Ext.P18. The candidates like the
petitioners who got into a rank list with much effort, cannot
be subjected to such unfair and discriminatory treatment,
which deprives not only their fundamental right for equality
before law and equal opportunity for employment under the
State, but their right to livelihood also in violation of Art.14.
Art.16 and Art.21 of the Constitution of India In the above
circumstances, it is declared that condition No.1 in Ext.P18,
which excludes the ranked lists covered by Ext.P16, from the
benefit of extension is arbitrary and hence the ranked lists
Exts.P2 to P15 are entitled to the benefit of extension as per
Ext.P18 notification."
Thus, this Court found that condition No.1 referred to above is
arbitrary and therefore, the benefit of extension is to be given to
other ranked lists also.
4. Though, an appeal is preferred against the above judgment,
by KPSC, a Division Bench of this Court has confirmed the
judgment of the learned Single Judge, by a judgment dated
01.03.2018 in WA No.2255 of 2017.
OP(KAT) Nos.449 of 2018 and 354 of 2019
5. On account of the above, when the vacancy arose with
respect to Kollam District, for the period from 01.01.2017 to
30.06.2017, KPSC did not take any steps to report vacancies and
to make appointments from Annexure A1 rank list. In such
circumstances, OA(EKM) No.759 of 2018 was filed before the
Tribunal by the 1st respondent herein praying for a direction to the
District Medical Officer to compute the substantial vacancies which
arose during the period from 31.12.2016 to 30.06.2017 and report
the same and also for a direction to advise those included in
Annexure A1 list on the basis of the report of the District Medical
Officer. The Tribunal has disposed of the above original application
by the impugned order dated 08.06.2018, with the following
directions:
"On consideration of the facts, it is noted that the benefit
as granted in the judgment in WP(C)4178/2017 dated
19.6.2017 has been extended to Annexure A1 ranked list
for the post of Staff Nurse in Kollam district as well. It is
also noted that the fifth respondent has already reported
34 vacancies which had occurred during 31.12.2016 to
30.6.2017 to the third respondent for advice and
appointment from Annexure A1 ranked list. The Public
Service Commission is therefore bound to issue advices
against the reported vacancies in accordance with the
directions of this Tribunal and the judgments of the Hon'ble
High Court.
OP(KAT) Nos.449 of 2018 and 354 of 2019
It is noted that the issue is no longer res integra and in so
far as the judgment of the Division Bench of the Hon'ble
High Court not being set aside or reversed by the Hon'ble
Supreme Court, the above judgment operates as a
precedent in the light of the dictum laid down by a Division
Bench of the Hon'ble High Court in Abdu Rahman v.
District Collector, Malappuram and others [2009 (4)
KLT 485]. The Public Service Commission is therefore
bound by the directions of the Hon'ble High Court and to
grant the benefit of extension to Annexure A1 ranked list.
The original application is accordingly disposed of.
Thus, the Tribunal relied on the judgment of this Court referred
above, and the already reported 34 vacancies which occurred from
31.12.2016 to 30.06.2017 and held that KPSC is bound by the
directions issued by this Court and grant the benefit of extension
to Annexure A1 rank list also.
6. It is aggrieved by the above order, that respondents 2
and 3 in the original application before the Tribunal have preferred
OP(KAT) No.449 of 2018. On 16.07.2018, another rank list came
into effect and the petitioners in OP(KAT) No.354 of 2019 claim
that they are highly aggrieved by the impugned order of the
Tribunal, on account of which, they are also challenging the said
order.
7. On 19.12.2018, this Court admitted OP(KAT) No.449 of
2018, staying the operation and implementation of the impugned
OP(KAT) Nos.449 of 2018 and 354 of 2019
order of the Tribunal. It is also held that, no fresh appointments
based on any subsequent recruitments as against the post covered
by the relevant notification which led to the publication of the list
in question, be made without obtaining orders from this Court.
The said order has since been modified by this Court on
25.10.2019, holding that no fresh appointments based on any
subsequent recruitment shall be made to the vacancies that had
arisen during the period from 31.12.2016 to 30.06.2017. An
application for impleading filed by additional respondents 17 and
18, who also claim that they are included in the same Annexure
A1 ranked list, was allowed by this Court on 04.09.2019, and they
were also included in the party array. OP(KAT) No.354 of 2019 is
admitted by this Court on 03.09.2019.
8. We have heard the learned Standing Counsel appearing
for the petitioners in OP(KAT) No.449 of 2018, the learned counsel
for the petitioners in OP(KAT) No.354 of 2019, the learned counsel
appearing for the 1st respondent in both these cases, the learned
Senior Government Pleader appearing for respondents 2 to 4 in
OP(KAT) No.449 of 2018 and respondents 2, 5 and 6 in OP(KAT)
No.354 of 2019. We also heard the learned counsel appearing for
additional respondents in OP(KAT) No.449 of 2018.
OP(KAT) Nos.449 of 2018 and 354 of 2019
9. The learned Standing Counsel appearing for the
petitioners in OP(KAT) No.449 of 2018, contends that the original
application before the Tribunal was presented only on 20.03.2018
and therefore, there is no cause of action available for the
respondents herein. He pointed out that even if there is any cause
of action, the same is hit by delay and laches and there is no
separate petition for condoning the delay in approaching the
Tribunal. He also pointed out to the new rank list, which came into
force with effect from 16.07.2018, and contended that the Tribunal
ought not have issued the directions through the impugned order,
in favour of the 1st respondent. The learned Standing Counsel also
relies on the judgment of the Apex Court in Thulaseedharan v.
K.P.S.C. [2007 (3) KLT 19], rendered by the Apex Court, to
contend that KPSC cannot revive or keep alive an expired ranked
list, and also the judgment of this Court in Subina v. State of
Kerala [2019 (3) KLT 735] to contend that KPSC cannot be
compelled to extend the period of validity of the ranked list.
10. The learned counsel appearing for additional
respondents 5 to 16 has also supported the stand of KPSC, insofar
as they are included in the new list which came into effect on
16.07.2018.
OP(KAT) Nos.449 of 2018 and 354 of 2019
11. Per contra, the learned counsel appearing for the 1st
respondent in both these original petitions pointed out that there
is no delay as alleged in approaching the Tribunal, that the
application was presented before the Tribunal based on the
vacancies which arose after 31.12.2016 till 30.06.2017. He also
pointed out that the judgment of the Division Bench, confirming
the judgment of the learned Single Judge, both of which have been
relied on in the order issued by the Tribunal, has been confirmed
by the Apex Court in the order dated 15.02.2022 in SLP(C)
Nos.9111-9124 of 2018.
12. We have considered the rival submissions and the
connected records.
13. The short issue for consideration in these original
petitions is with reference to the directions issued by the Tribunal
in the impugned order. It is an admitted case that the 1 st
respondent was included in the ranked list at Annexure A1 which
was once extended till 31.12.2016. The validity of such ranked
lists, which were to expire by 31.12.2016 was extended, with a
rider that extension would not be applicable to the lists that were
already once extended. The above rider has been held to be
arbitrary by this Court in Gopakumar N. [ILR 2017 (4) Ker
500]. The said judgment is confirmed by a Division Bench of this
OP(KAT) Nos.449 of 2018 and 354 of 2019
Court also. The original petition is filed by KPSC mainly pointing
out that the judgment of the Division Bench is challenged before
the Apex Court and there is a status quo order by the Apex Court.
However, it is seen that the Apex Court has since dismissed the
above Special Leave Petitions, on account of which, the judgment
in Gopakumar N. [ILR 2017 (4) Ker 500] holds the field.
Therefore, the directions issued by the Tribunal with respect to
Annexure A1 ranked list, cannot be said to be illegal. So also, the
submission of the learned Standing Counsel for the petitioners
herein, that the application before the Tribunal was belated, is also
not correct.
14. In the application before the Tribunal, it has been
specifically pointed out that there are vacancies which arose
between the period from 31.12.2016 to 30.06.2017 and it is on
that basis, the original application is presented. The Tribunal has
also rightly noticed the above vacancies (34 vacancies) and issued
necessary directions in that regard. We find no reason to interfere
with the above directions. The judgments relied on by the learned
Standing Counsel for KPSC are also not applicable to the facts and
circumstances of the case at hand, since those judgements were
rendered with reference to the power of KPSC to revalidate the
time-expired ranked list and also in a situation where KPSC is
OP(KAT) Nos.449 of 2018 and 354 of 2019
being compelled to extend the period of the ranked list based on
the power available to it. Here, KPSC has already extended the
validity of certain rank lists with certain conditions and the said
condition is found to be arbitrary by a learned Single Judge of this
Court. The said finding has since been upheld by the Division
Bench and the Special Leave Petition has also been rejected by
the Apex Court. Therefore, we find no reason to interfere with the
impugned order of the Tribunal, challenged in OP(KAT) No.449 of
2018.
For the same reasons, we find no merit in OP(KAT) No.354
of 2019 filed by the third parties, who claim the benefit of their
inclusion in the subsequent list which came into effect on
16.07.2019. Therefore, both the captioned original petitions are
dismissed.
Sd/-
ANIL K.NARENDRAN
JUDGE
Sd/-
HARISANKAR V. MENON
JUDGE
ln
OP(KAT) Nos.449 of 2018 and 354 of 2019
APPENDIX OF OP(KAT) 354/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE RANK LIST OF STAFF NURSE
GRADE-II, IN KOLLAM DISTRICT VIDE
CATEGORY NO.454/2016.
EXHIBIT P2 TRUE COPY OF THE MEMORANDUM OF O.A.(EKM)
NO.759/2018 OF THE HON'BLE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM (CAMP SITTING AT
ERNAKULAM).
EXHIBIT P2- TRUE COPY OF THE RELEVANT PAGES OF THE
ANNEXURE A1 RANK LIST OF STAFF NURSE GRADE II IN
KOLLAM DISTRICT.
EXHIBIT P2- TRUE COPY OF THE ORDER OF THE HON'BLE
ANNEXURE A2 TRIBUNAL PASSED IN O.A.(EKM) NO.125 OF
2017 DATED 29/06/2017.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 08/06/2018
IN O.A.(EKM) NO.759/2018 OF THE HON'BLE
KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM (CAMP SITTING AT
ERNAKULAM).
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 16/04/2018
IN S.L.P.NO.9111/2018 OF THE HON'BLE
SUPREME COURT OF INDIA.
OP(KAT) Nos.449 of 2018 and 354 of 2019
APPENDIX OF OP(KAT) 449/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE O.A.NO.759 OF 2018 WITH
ITS ANNEXURES.
ANNEXURE A1 TRUE COPY OF THE RELEVANT PAGES OF THE
RANK LIST OF STAFF NURSE GRADE II IN
KOLLAM DISTRICT
ANNEXURE A2 TRUE COPY OF THE ORDER OF THE HON'BLE
TRIBUNAL PASSED IN O.A.(EKM) NO. 125 OF
2017 DATED 29.06.2017
EXHIBIT P2 TRUE COPY OF THE ORDER IN O.A.NO.759/2018
DATED 08.06.2018.
EXHIBIT P3 TRUE COPY OF THE ORDER OF THE HON'BLE
SUPREME COURT IN S.L.P.
