Thulaseedharan Vs. The
Service Commission, Trivandrum & O  Insc 488 (30 April 2007)
C.K. THAKKER & P.K. BALASUBRAMANYAN
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.
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
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
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 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
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 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
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
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 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.