ANNIE Vs. COMMISSIONER CHALAKUDY MUNICIPALITY

JUDGEMENT

(1.) The petitioner in O. P. No. 5803 of 1983 is working as Lower Division Clerk/Bill Collector in Chalakkudi Municipality while the petitioners in the other two original petitions are working as such in Trichur Municipality. They are persons whose names were registered with the respective employment exchanges and through the latter, they were appointed provisionally in these posts in 1980 for a period of 89 days. Expecting to be ousted from the service at the end of the period, they filed original petitions under Art.226 of the Constitution before this Court (O. P. Nos. 2210 of 1981 and 4152 of 1981) contending that they are workmen and that the concerned department is an industry and that they are entitled to protection under the provisions in Chapter VA of the Industrial Disputes Act, 1947. This court upheld the contention and directed that their services shall not be terminated except in accordance with Chapter V A of the Industrial Disputes Act, but subject to being replaced by regular recruits on the advice of the Kerala Public Service Commission (hereinafter referred to as "Service Commission"). The petitioners continued in service While so, on requisition from the concerned authority, Service Commission advertised the posts of L. D. Clerks/Bill Collectors in the Municipal Common Service and after going through the process of selection, prepared a ranked list which came into force on 1-6-1981. Since the life of a ranked list is two years it would have lapsed on 31-5-1983. Petitioners expect that they will be replaced by persons in the ranked list of the Service Commission and therefore, they have filed these original petitions under Art.226 of the Constitution of India challenging the legality of any appointments of persons from the ranked list prepared and published by the Service Commission. In fact the petitioner in O. P. No. 5961 of 1983 - E was ousted to give place to the 4th respondent in that original petition, who has been included in the advice dated 4-6-1983. The contention is that the ranked list having lapsed on 31-5-1983, Service Commission could not advise any person from that list after 31-5-1983 and consequently, no person so illegally advised by the Service Commission could be validly appointed. After the expiry of the life of the ranked list, persons in that list could not be regarded as regular recruits lawfully advised by the Kerala Public Service Commission. Therefore, the argument goes, the petitioners are entitled to continue in service till another ranked list is prepared after due notification, etc.

(2.) Counter affidavit has been filed only on behalf of the Service Commission. It is sworn to by the District Officer in the District Office of the Service Commission at Ernakulam. It is stated in the counter affidavit that the ranked list came into force with effect from 1-6-1981 and would have lapsed from 31-5-1983. However, it is pointed out that the Director of Municipal Administration, as per letters dated 19-5-1983 and 28-5-1983 received by the Service Commission on 21-5-1983 and 28-5-1983 respectively, reported altogether 100 vacancies in the cadre of L. D. Clerks / Bill Collectors in the Municipal Common service and accordingly 100 selected candidates from the ranked list were advised by the Service Commission on 4-6-1983 and 21-6-1983 respectively. It is contended that though the ranked list lapsed on 31-5-1983 it is subject to the vacancies reported prior to that date and in regard to those vacancies, Service Commission is entitled to advise even after 31-5-1983. The various dates and facts alleged in the counter affidavit are not challenged by the petitioners.

(3.) Learned counsel for the Service Commission placed reliance on the judgment of Khalid, J. (as he then was) and reported in C. Murughan and others v. State of Kerala and others (1982 (2) ILR (Kerala) Page 74). In that case the ranked list came into force on 28-3-1978. Certain vacancies were reported on 27-3-1978 and the Service Commission received the same on the same date. The Commission asked for clarification from the Government and the reply was received on 10-6-1980. On 9-7-1980 two persons in the ranked list were advised. The question arose whether those two persons could be appointed. One of the objections raised was that since the ranked list lapsed on 27-3-1980, the advice on 9-7-1980 would be illegal. This argument was met by contending that since the vacancies were reported to the Commission prior to the expiry of the period of the ranked list, lawful advice could be made even after the expiry of the period. The Court noticed the practical difficulties arising in a particular case preventing the Service Commission from giving advice within a few days after the receipt of the report of the vacancies and came to the conclusion that the advice was proper and the Government was bound to appoint the persons included in the advice.