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CASE NO.: Appeal (civil)  2258 of 2007

PETITIONER: K. Thulaseedharan

RESPONDENT: The Kerala State Public Service Commission, Trivandrum & Ors

DATE OF JUDGMENT: 30/04/2007

BENCH: C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO. 2258 OF 2007 (Arising out of SLP(C) No. 21495 of 2004) (with C.A. No.  2259 of 2007  (@ S.L.P. (C) No. 261 of 2005)

P.K. BALASUBRAMANYAN, J.

                1.              Leave granted. 2.              Heard counsel on both sides. 3.              The appellants in this appeal were included in a  ranked list for appointment to the post of Overseer Grade- II in the Public Works and Irrigation Departments.  The  ranked list was published on 31.3.2001.  Its normal  validity was one year.  But if no new list was prepared, its  validity extended to three years.  No new list was  prepared.  Therefore, the list was operative till 31.3.2004.   

4.              In the list prepared, diploma holders were not  included on the ground that they possessed a qualification  higher than the one required.   The diploma holders filed  writ petitions in the High Court seeking the issue of a writ  of mandamus directing the Kerala Public Service  Commission to include them in the ranked list.  On  18.2.2003, the High Court allowed the writ petitions and  directed that the ranked list be recast including the  diploma holders also. This caused some delay in the  operation of the list prepared on 31.3.2001.

5.              Even prior thereto, the Government of Kerala  had issued an order banning new appointments in view of  the circumstances prevailing in the services in the State.  This ban on new appointments was in force from May  2002 to November 2003, for a period of 18 months.  The  result was that on the reporting of vacancies, only 633  names were advised for appointment.  

6.              Under Rule 13 of the Kerala Public Service  Commission Rules of Procedure, the Public Service  Commission, under the 5th Proviso thereto, had the power  to keep alive the ranked list, which was normally due to  expire during the period when there was a ban on  appointments, for a period of 30 days from the date of  cessation of the ban.  On 4.9.2002, the 5th Proviso to Rule

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13 of the Rules was amended.  The substituted 5th proviso  to Rule 13 of the Rules read as follows:

"Provided further that if the commission is  satisfied of the existence of period of  general ban declared by the Government on  the reporting of vacancies to the Public  Service Commission or of any other  circumstances or of any extraordinary  situation in which the reporting of  vacancies by the appointing authorities is  prevented or restricted or delayed, the  Commission shall have the power to keep  alive the Ranked Lists which are normally  due to expire during the said period to such  periods as may be decided by the  Commission subject to a minimum period  of three months or for such further periods  but not exceeding one year in the aggregate.   If the Commission so decides it shall issue  a notification keeping alive the Ranked  Lists in the above manner and shall advise  candidates from such Ranked Lists to the  vacancies reported during such extended  period of validity of the Ranked Lists."

7.              On 19.11.2003, the Government of Kerala  recommended to the Public Service Commission to extend  the validity of lists upto the end of Year 2004 in view of  the ban that was in operation.  The Public Service  Commission did not exercise its power under the 5th  proviso to Rule 13 of the Rules to extend the validity of the  list.  The Government therefore again wrote on 21.2.2004  asking the Public Service Commission to keep alive the  ranked lists until the end of December 2004.  Pursuant to  this request, the Kerala Public Service Commission met on  2.4.2004 and extended the lists that were current and  that were to expire thereafter till 30.12.2004.  The ranked  list in respect of the 2nd Grade Overseer with which we are  concerned, was not kept alive on the basis that the list  had expired on 31.3.2004 and on 2.4.2004, the Public  Service Commission could not exercise its power to keep  alive a list which had already expired.  Thus, though the  extension benefited some of the other ranked lists, the  ranked list in question was treated as having expired by  31.3.2004.   

8.              In that context, the appellant approached the  High Court with a writ petition. The learned single judge  following an earlier decision of a Division Bench in W.A.  No. 1053 of 2004, took the view that the decision of the  Public Service Commission to extend the validity of the  ranked lists which were alive as on 3.4.2004 could not be  relied on to claim that the concerned ranked list which  had expired by 31.3.2004 had revived or had been kept  alive.  The argument that if the Public Service Commission  had taken prompt action, the validity of the concerned  ranked list would have also stood extended, was rejected  in the light of the legal position.  The appellant thereupon  filed an appeal before the Division Bench of the High  Court.  The Division Bench after referring to its prior  decision in W.A. No. 1053 of 2004 and taking note of the  fact that the concerned list had expired before the

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Notification dated 3.4.2004 extending the validity of the  various lists was issued, held that the expired list could  not be kept alive or revived in exercise of power under the  5th proviso to Rule 13 of the Rules.  Affirming the decision  of the learned single judge, the appeal was dismissed. The  decision of the Division Bench is in challenge before us at  the instance of the appellant and certain others similarly  situated.

9.              Shri C.S. Rajan, learned Senior Counsel  appearing for the appellants pointed out that the stand  adopted by the Public Service Commission in the case on  hand that the Commission had no power to extend the  validity of a ranked list that had expired was not correct  and was inconsistent with its own stand in other cases.  Learned counsel pointed to two other instances where the  Commission had extended the validity of lists, the period  of which had already expired on the day the notification in  exercise of power under the 5th proviso to Rule 13 of the  Rules was issued and contended that it was not open to  the Public Service Commission to adopt an inconsistent  stand just to defeat the claim of the appellant.  Learned  counsel for the Public Service Commission could not really  explain how the Public Service Commission could have  revalidated lists which had already expired in the  instances pointed out by learned counsel for the  appellants.  Though, we have some sympathy for the  appellants considering the circumstances, we find it not  possible to grant any relief to the appellants since on an  interpretation of the Rule concerned, we are not in a  position to disagree with the view adopted by the High  Court in the judgment in W.A. No. 1053 of 2004 and in  the judgment under Appeal.  

10.             The 5th proviso to Rule 13 of the Rules relied  upon clearly gives an indication that the power available  thereunder could be exercised only in the case of a ranked  list which is still subsisting or the life of which is still  continuing.  The words "the Commission shall have the  power to keep alive the Ranked Lists which are normally  due to expire during the said period" (emphasis supplied)  clearly show that it is a question of keeping alive until a  future date, of a live list, the term of which is to expire  shortly.  The power under the 5th proviso to Rule 13 of the  Rules cannot be made use of to revalidate a time expired  ranked list.  The two instances pointed out by learned  Senior Counsel for the appellants where the Public Service  Commission had done it, could not be justified legally in  the light of the 5th proviso to Rule 13 of the Rules.  They  must be treated as aberrations.  They cannot form the  foundation of any right.  In this situation, we are satisfied  that there is no justification in interfering with the  decision of the High Court since by 3.4.2004 when the  notification extending the validity of the lists was issued,  the validity of the list in question had expired and the  same could not be revived in alleged exercise of power  under the 5th proviso to Rule 13 of the Rules.

11.             Before parting with the case, we think that it is  necessary to express our unhappiness at the inconsistent  conduct of the Public Service Commission.  The Public  Service Commission is a constitutional body and it is

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expected to act even handedly and strictly in accordance  with law.  When the 5th proviso to Rule 13 of the Rules  gives it only a power to extend the validity of lists for the  periods referred to therein in the circumstances indicated  therein, it has only the power to keep alive a ranked list  which is still current on the day the decision is taken and  not revive and keep alive a ranked list which had already  expired. The counter affidavit of the Public Service  Commission itself indicates that the High Court has taken  such a view in about 50 cases.  It is not expected of a  constitutional body like the Public Service Commission to  issue orders or notifications for which it has no authority.   On a true construction of the concerned provision this is  the position.  It is interesting to note that the stand  adopted by the Public Service Commission in the present  case before the High Court and before us is also that  under the 5th proviso to Rule 13 of the Rules it has no  power to revive a dead list and all that it can do is to keep  alive for a further period a list which is still alive on the  day the decision is taken. We trust that the Public Service  Commission would ensure that such illegalities like the  issuing of orders relied upon by the learned counsel for  the appellant, are not committed creating hardship and  agony to some, out of many included in lists prepared by  the Public Service Commission.

12.             Since we are in agreement with the decision of  the High Court, we see no reason to interfere.  We dismiss  the appeal.