Writ petition challenging non-reporting of vacancies by KSEBL during restructuring. Court held respondent's decision bona fide due to project scarcity and upheld dismissal.
Prayer to quash the order and direct reporting of vacancies dismissed; petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV
WEDNESDAY,THE22NDDAYOFNOVEMBER2023/1STAGRAHAYANA,1945
WP(C) NO. 11474 OF 2023
PETITIONERS:
1*[FEHMIDAFATIMAS,
AGED30YEARS
W/O.NITHINA.N,ATTUPURATH,TRA-60,THEVALLYP.O.,
KOLLAM-.]DELETED..*P1DELETEDASPERORDERDATED
12/09/2023INIA2/23),PIN-691009
2KIRANK.S
AGED29YEARS
S/O.SUKUMARANK,KEEZHEPPAT(H),KARAKURUSSIP.O.,
PALAKKAD-.,PIN-678595
3MANEESHOMANAKUTTAN,
AGED24YEARS
S/O.OMANAKUTTAN,KRISHNAVILASAM,KANNIMELNAGAR5,
KAVANADUP.O,KOLLAM-.,PIN-691003
4VISHNUMOHANK,
AGED30YEARS
S/O.MOHANANK.VKRISHNAKRIPRA,SUBRAMANYAPURAM,
AVALOOKUNNUP.O.,SOUTHARYAD,ALAPPUZHA-,PIN-688006
BYADVS.
KALEESWARAMRAJ
THULASIK.RAJ
APARNANARAYANMENON
CHINNUMARIAANTONY
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY ITS CHAIRMAN, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN - 695004W.P.(C) No. 11474 of 2023 :2:
2 THE CHAIRMAN & MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD LTD VAIDYUTHI BHAVAN, PATTOM THIRUVANANTHAPURAM, PIN - 6950043 THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM -., PIN - 6950044 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, THULASI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM, PIN - 695004BYADVS.
NOELJACOB
THUSHARAJAMES(K/3592/1999)
M.S.AMALDHARSAN(K/728/2015)
OTHER PRESENT:
SRI.PCSASIDHARAN,SCFORKPSC&
SRI.BPREMOD,SCFORKSEB
THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION
ON22.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHE
FOLLOWING:
W.P.(C) No. 11474 of 2023
:3:
“CR”
JUDGMENT
The petitioners herein have been included in the ranked list for the Assistant Engineer (Civil) post in the Kerala State Electricity Board Ltd (‘KSEBL’ for brevity). Their grievance is that despite the availability of substantial vacancies in the post of Assistant Engineer (Civil) in KSEBL, those vacancies are not reported to the PSC by the 1st respondent on the ground that restructuring measures are being initiated in the company.
a) The petitioners have been included in Ext. P1 rank list in the main list. The aforesaid rank list is stated to expire on 02.12.2023, as is evident from Ext.P2. It is stated that from Ext.P4 information obtained under the Right to Information Act, there are a total number of 330 sanctioned posts as on 01.02.2023 for the post of AE (Civil) in KSEBL, out of which 115 posts are occupied and 215 posts are vacant. The cadre strength of 330 is distributed in the ratio 4:1:3:2; 40% Degree quota (Open market), 10% in service quota
W.P.(C) No. 11474 of 2023 :4:
(Degree), 30% Diploma quota, and 20% ITI quota. Accordingly, there would be 132 sanctioned posts in the category of AE (Civil), which are to be filled by recruitment from the open market by the 4th respondent.
b) According to the petitioners, Ext.P6 has been issued by the KSEBL for reporting vacancies of AE (Civil) under 40% direct recruitment quota and 10% in service quota. Relying on Ext.P6, it is contended that 131 is the cadre strength for the 40% direct recruitment quota. The petitioners assert that there are 36 vacancies out of 131 sanctioned posts, which are not reported by the 1st respondent. The reasons stated in Ext.P8 issued by the Chief Engineer, HR Management is that extensive restructuring measures are being carried out in all departments, including the civil department.
c) The petitioners assert that orders have been issued for promotion to the cadre of AE (Civil) in the 30% Diploma quota, 20% in the ITI quota, and 75% in the Graduate quota.
d) It is further contended that the Government has issued Ext.P14 Circular ordering the 1st respondent to report the anticipated vacancies. Their grievance is that Ext. P14 Circular is not being complied with by the KSEBL.
W.P.(C) No. 11474 of 2023 :5:
e) Pursuant to Ext. P14, the Power (A) Department had directed the
KSEBL to report all anticipated vacancies in 2023 to the 4th respondent and
also to make information on vacancies available to the Government. However, the KSEBL did not comply with the directions.
f) The petitioners assert that highlighting their grievances, Ext.P18 representation was submitted before the 3rd respondent. However, no action has been taken. It is in the afore circumstances that this Writ petition is filed seeking the following reliefs:
W.P.(C) No. 11474 of 2023
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:7:
W.P.(C) No. 11474 of 2023
Engineer (Civil) category. Moreover, the Corporation is unable to establish the optimal strength indicator for Assistant Engineers (Civil) until the restructuring process is finalized.
Read order dated 7/8/2023. Standing counsel seeks further time, however, admitting that the rank list has expired. In the afore circumstances, I direct the KSEB to report 36 vacancies provisionally to the Public Service Commission, making it clear that the latter shall not cause any advice against the same, without obtaining further orders from this Court.
list were to be published, its consideration for determining the rank list's
W.P.(C) No. 11474 of 2023 :8:
validity would only commence after one year from 3/12/2022. It is emphasized that the rank list is still in force and is far from its expiration date. This crucial aspect was not duly considered when the interim order was issued. Additionally, the ongoing restructuring process within the Civil Wing of the 1st respondent, a Government company, is highlighted. This restructuring process takes into account various factors, including the financial viability of new projects and the necessity to modernize the sanctioned strength, which was established many years ago. It is stated that the 1st respondent faces difficulties in determining the number of Engineers needed and whether the current vacancies can be sustained. Exhibit P2 is merely a draft rule and does not impact the recruitment process within the 1st respondent. The decision of reporting or non-reporting of these vacancies is considered as the prerogative of the employer. It is emphasized that there is no statutory obligation on the part of the 1st respondent to report these vacancies, and individuals included in the rank list do not possess a vested right to advice and appointment to any specific vacancy.
W.P.(C) No. 11474 of 2023 :9:
the post earmarked for 40% quota, those posts are not filled up. The learned counsel would refer to Ext.P9 to P13 and P19, and it is submitted that the respondents are filling up other quotas. It is pointed out that the petitioners are sidelined by merely mentioning that the restructuring process is going on. The learned counsel submits that in view of the law laid down in Shankarsan Dash v. Union of India1 , the decision not to fill up the vacancies has to be taken bona fide and for appropriate reasons. The learned counsel would urge that in view of the law laid down in Prakash v. Kurien2 and Prasad Kurian and Ors. v. K.J. Augustine and Ors.3 , the Board must strictly follow the quota rule. 36 vacancies in the 40% stream earmarked for the open quota will have to be filled up, and the same cannot be tinkered with. According to the learned counsel, the course that is to have been followed by the respondents is to appoint the persons in the select list, and if they are not required, they could be retrenched enabling them to seek re-engagement as provided under Rule 7 Part II of the KS & SSR.
1 [(1991) 3 SCC 47]
2 [1999 KHC 408]
3 [2008 (2) KHC 216]
:10:
W.P.(C) No. 11474 of 2023
the proceedings. It is further submitted that the manpower in the Civil stream caters to the construction of new projects. However, due to various factors, implementing new projects has become next to impossible. The KSEBL, in the said circumstances, has taken a decision to undertake restructuring in the Civil stream, and it is for the above bona fide reason that the vacancies were not reported. It is further submitted that the contention of the respondents that the rank list is due to expire within a period of one year from 3.12.2022 is erroneous. According to the learned counsel, the ranked list will remain in effect until the publication of a new ranked list following the expiration of a minimum period of one year or until the expiration of three years from 3.12.2022, whichever is earlier. It is further submitted that Ext.P2 relied on by the petitioners is merely a draft rule that has not come into effect. Therefore, the reference to the expiry of the ranked list within one year mentioned therein cannot be used for any purpose whatsoever. Relying on the law laid down in Director of Indian System of Medicine and Another etc. v. Dr. Susmi
C. T. and Another etc.4 , it is submitted that the candidates cannot claim any right to report vacancies, and it would also not be proper for this Court to exercise powers of judicial review to the appointing authority to report
4 [2021 SCC OnLine SC 1188]
W.P.(C) No. 11474 of 2023
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vacancies. Insofar as Exts.P9 to P13 are concerned, it is submitted that such proceedings were issued in view of the seniority protection clause, and that has nothing to do with the question of reporting the vacancies. The learned counsel would also refer to the law laid down in Shankarsan Dash (supra) , and it is submitted that a candidate included in a select list or ranked list has no indefeasible right to be appointed even if the vacancy actually exists. All that is required to be looked into is whether the respondents have acted bona fide and not arbitrarily.
through the written submissions submitted by the learned counsel appearing for the petitioners.
W.P.(C) No. 11474 of 2023 :12:
State's best interests, is implementing comprehensive restructuring across various departments, particularly in the Civil stream. This rationale forms the
basis of the respondent's decision not to disclose the vacancies.
12. In Director of Indian System of Medicine and Another
(supra), the Apex Court had occasion to observe as under
"26. It is, therefore, as against vacancies that are reported to the KPSC, that the candidates have some semblance of a right. However, as far as those not reported are concerned, the candidates cannot claim a right per se. It is possible that in given situations, the state may be lethargic, or even may not wish to report vacancies. In such situations, undoubtedly the individuals awaiting appointment may have recourse to judicial remedies. In such proceedings, the government or the concerned agency can furnish a suitable explanation. If that is found to be arbitrary, appropriate directions may follow. However, the procedure in all such cases, would be to consider
W.P.(C) No. 11474 of 2023
:13:
the state's response. In the present case, the KAT in this Court's opinion, entirely misdirected itself in making an inquiry whether vacancies had arisen in June 2017, with promotion of some Medical Officers. As the department explained, those promotions could not automatically result in vacancies, having regard to the fact that excess number of Medical Officers were on the rolls. Furthermore, the KAT in our opinion, should not have inquired into the matter, once it was reported that all vacancies that could be reported, had been reported - as is evident from the reply filed by the department, as well as the tabular chart in it."
13. The Apex Court, after meticulously analysing the facts of that case
as well as the provision contained in Rules 13 and 14 of the Kerala Public Service Commission Rules of Procedure, has held that as far as vacancies that are not reported are concerned, the candidates cannot have a claim per se, but it is certainly possible that in given situations, the State authorities may be lethargic or even may not wish to report vacancies and in such scenarios, undoubtedly the individuals awaiting appointment and advice may have recourse to judicial remedies. That, in such proceedings, the Government or the agency concerned can furnish a suitable explanation, and if that is found to be arbitrary, then certainly appropriate directions can be issued by the judicial fora concerned and that the procedure in all such cases would be to consider the
W.P.(C) No. 11474 of 2023
:14:
State's response and if there are strong and cogent materials to come to the considered conclusion that the above said stand of the State authorities is rather arbitrary and without any materials, then certainly the High Court of the Tribunal exercising powers under judicial review can certainly exercise their discretionary powers to issue appropriate directions in the matter of provisional reporting of vacancies, etc., subject to the condition that the final determination regarding the actual existence or otherwise of those vacancies is to be rendered later.
14. In Shankarsan Dash v. Union of India (supra), it was
observed 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 no 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
W.P.(C) No. 11474 of 2023
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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, Neelima Shangla v. State of Haryana [(1986) 4 SCC 268] or Jatinder Kumar v. State of Punjab [(1958) 1 SCC 122].”
qualified candidates to apply for recruitment, and on their selection, they do not acquire any right to the post. The employer is also not under any legal duty to fill up all or any of the vacancies. The only condition is that the decision not to fill up the vacancies shall be taken on bona fide and for appropriate reasons.
Bench of this Court had occasion to deal with an identical issue. The question was whether the Court could be approached to compel an appointing authority to fill up vacancies from a rank list prepared by the Kerala Public Service Commission. The Full Bench has answered the said issue holding as follows:
"13. We therefore answer the issue in the following manner.
(I) xxxx xxxx xxxx (II) An appointing authority may, for good and sufficient
5 [2020 (5) KLT 718],
W.P.(C) No. 11474 of 2023
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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 Art.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."
17. In Arshitha P and Others v State of Kerala6 , a Division bench
of this Court, after considering the entire law on the point, had occasion to observe as under:
As the Apex Court has categorically held in the recent decision in Dr. Susmi's case (supra), the correct approach is that as far as vacancies are not reported, the candidates cannot claim a legal right per se but that it is certainly possible that in given situations the departmental and State authorities may be lethargic and may be arbitrary in not reporting the vacancies or may not wish to report vacancies for irrelevant grounds and in such scenarios, undoubtedly, the candidates included in the rank list published by the Kerala Public Service Commission can take recourse to judicial remedies and in such proceedings, it is for the government or the department concerned to furnish a suitable explanation as to the pleadings and materials urged by the applicants / petitioners and about its correctness or otherwise. If the explanation offered by the departmental authority is found to be arbitrary, then certainly the Courts can issue appropriate interim directions to ensure that the appointing
6 [2022 (2) KHC 299]
W.P.(C) No. 11474 of 2023
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authority reports specified number of vacancies on a provisional basis, well before the expiry of the rank list to judicially determine the issue later. However, where the departmental authorities come with cogent materials to justify their stand that they have already reported all available vacancies, etc. and have even taken a diligent step thereafter, etc., then it is for the petitioners to rebut those aspects on the basis of cogent and relevant pleadings and materials. If proper materials are not there, it may not be right and proper for the Court exercising powers of judicial review to direct the appointing authority to report vacancies.
W.P.(C) No. 11474 of 2023
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sufficient reasons for the appointing authority to take a decision not to fill up the vacancies. The individuals awaiting appointment and advice may have recourse to judicial remedies. In such proceedings, the Government or the agency concerned can furnish a suitable explanation, and if that is found to be bona fide and reasonable, this Court shall not interfere by exercising powers under Article 226 of the Constitution of India. However, if there are strong and cogent materials to come to the considered conclusion that the stand of the State authorities is arbitrary and without any materials, then certainly the High Court or the Tribunal exercising powers under judicial review can certainly exercise their discretionary powers to issue appropriate directions.
W.P.(C) No. 11474 of 2023 :19:
with the contention of the petitioners that the Board must be directed to follow the quota rule strictly and they should be directed to fill up the 36 vacancies in the 40% stream earmarked for the open quota. The course suggested by the petitioners that persons in the select list should be first appointed and they are to be retrenched later to enable them to seek re-engagement as provided under Rule 7 Part II of the KS & SSR will only lead to spawning unwanted litigations by disgruntled employees and nothing more.
W.P.(C) No. 11474 of 2023 :20:
will be in force till the publication of a new rank list after the expiry of a minimum period of one year or till the expiry of 3 years whichever is earlier. There appears to be merit in the submission of the learned standing counsel that this Court had issued the interim order under the impression that the ranked list was due to expire within one year. Now that this Court has already held that the action on the part of the respondents does not lack any bona fides and that the ranked list is not due to expire as contended by the petitioners, I am of the considered opinion that the prayer sought for cannot be granted.
petitioners are not entitled to the reliefs as prayed for.
This petition is dismissed.
sd/-
RAJA VIJAYARAGHAVAN V, JUDGE
PS/20/11/23
W.P.(C) No. 11474 of 2023
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APPENDIX OF WP(C) 11474/2023
PETITIONEREXHIBITS
ExhibitP1TRUECOPYOFRELEVANTPAGESOFRANKLISTNO.
689/2022/SSVI(CATEGORYNO.005/2021)DATED
03.12.2022FORTHEPOSTOFASSISTANTENGINEER
(CIVIL)INTHEKERALASTATEELECTRICITYBOARD
LTD.
ExhibitP2TRUECOPYOFRELEVANTPAGESOFKERALASTATE
ELECTRICITYBOARDSERVICERULES,2022
ExhibitP3TRUECOPYOFRTIQUESTIONDATED09.02.2023
ExhibitP4TRUECOPYOFRTIREPLYDATED03.03.2023
ExhibitP5TRUECOPYOFNOTESUBMITTEDTOTHEDIRECTOR
(FINANCE&HRM,KSEBL)NO.
EB6(B)/PSC/2008/200/91DATED12.10.2022
ISSUEDBY2NDRESPONDENT.
ExhibitP6TRUECOPYOFORDERNO.B.O.(FTD)NO.66/2022
(EST.II/4290/2019)DATED24.01.2022ISSUED
BYKSEB
ExhibitP7TRUECOPYOFKPSCWEBSITESHOWINGSTATUS
ExhibitP8TRUECOPYOFLETTERNO.E.B.7(E)/GENERAL/C.M-
COMPLAINTG.2230200810DATED23.02.2023
ISSUEDBYCHIEFENGINEER,HUMANRESOURCE
MANAGEMENT.
ExhibitP9TRUECOPYOFPROCEEDINGSOFTHECHIEF
ENGINEER(HRM),KSEBLETTERNO.EB6
(B)/PRO/01/2014DATED05.01.2023
ExhibitP10TRUECOPYOFPROCEEDINGSOFTHECHIEF
ENGINEER(HRM),KSEBLETTERNO.EB6
W.P.(C) No. 11474 of 2023
:22:
(B)/PRO/01/2014 DATED 05.01.2023 |
||
|---|---|---|
Exhibit |
P11 |
TRUE COPY OF PROCEEDINGS OF THE CHIEFENGINEER (HRM), KSEB LETTER NO. EB6(B)/PROM/AE( C)-AEE(C)/2016 DATED 29.04.2022 |
Exhibit |
P12 |
TRUE COPY OF PROCEEDINGS OF THE CHIEFENGINEER (HRM), KSEB LETTER NO. EB6(B)/PROM/AE( C)-AEE(C )/2016 DATED 06.05.2022 |
Exhibit |
P13 |
TRUE COPY OF PROCEEDINGS OF THE CHIEFENGINEER (HRM), KSEB LETTER NO. EB6(B)/PROM/AE( C)-AEE(C )/2016 DATED 12.09.2022 |
Exhibit |
P14 |
TRUE COPY OF GOVERNMENT CIRCULARNO.DY.C3/100/2022/P & ARD DATED 08.11.2022 |
Exhibit |
P15 |
TRUE COPY OF LETTER NO. PWR-A3/231/2022/POWER DATED 25.11.2022 ISSUED BYPRINCIPAL SECRETARY, POWER A DEPARTMENT. |
Exhibit |
P16 |
TRUE COPY OF RTI REPLY ISSUED BY STATE PUBLICINFORMATION OFFICER & UNDER SECRETARY DATED16.02.2023. |
Exhibit |
P17 |
TRUE COPY OF LETTER NO. EB6(B)/PRO/01/2014DATED 27.01.2023 |
Exhibit |
P18 |
TRUE COPY OF THE REPRESENTATION DATED01.03.2023 SUBMITTED BY THE PETITIONER BEFORETHE 3 RD RESPONDENT |
Exhibit |
P19 |
TRUE COPY OF PROCEEDINGSNO.EB6(B)PRO/01/2014/SELECT LIST-DIPLOMADATED 20.05.2023 ISSUED BY THE 3RDRESPONDENT. |
3 issues framed by the court
Whether candidates on a rank list have a right to compel the employer to report unreported vacancies for recruitment.
Whether the employer's decision not to report vacancies due to ongoing restructuring constitutes a bona fide exercise of power.
Whether the interim order directing provisional reporting of vacancies can be executed given the rank list's validity period.
Colour shows how this judgement treated each authority
Shankarsan Dash v. Union of IndiaDistinguished¶55
[(1991) 3 SCC 47] · Who else cites this
Director of Indian System of Medicine and Another etc. v. Dr. Susmi C. T. and Another etc.Followed¶62
[2021 SCC OnLine SC 1188] · Who else cites this
Kerala Public Service Commission v. SheejamolFollowed¶95
[2020 (5) KLT 718]
Arshitha P and Others v State of KeralaFollowed¶103
[2022 (2) KHC 299]
Fehmida Fatima S
Kirank S
Maneesh O Manakuttan
Vishnu Mohan K
Kerala State Electricity Board Limited
The Chairman & Managing Director, Kerala State Electricity Board Ltd
RAJA VIJAYARAGHAVAN V
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court