KPSC Vs. KESAVANKUTTY NAIR

JUDGEMENT

(1.) WE cannot agree with the learned judge in bi s reasoning or conclusion in having allowed O P. No. 1423 of 1975 against which this writ appeal has been preferred by the Keral a Public Service Commission. The writ petition contained somewhat unusual prayers The Commission had prepared a rank-list on 27-2-1973. According to the practice then in force and still being followed by the Public Service Commission, the rank list was to remain in force for a period of one year (we are informed that the present currency of the list it for a period of two years) In accordance with the practice then prevailing, the list was cancelled on 26 21974. The writ petitione r who was aggrieved by the said cancellation, filed the writ petition with the following prayers: " ( i ) that this Honourabl e Court be pleased to call for the records and declare illegal the cancellation of the rank list of candidates advised for appointment as tutors, prepared on 7 21973. (ii) to issue a writ of mandamus or any other writ, direction or order directing the second respondent to revive the said rank list treating the same as alive and advise the petitioner's name to be appointed as tutor in Psychiatry. (iii) To issue a writ of mandamus or any other writ, direction or order directing the second respondent to forbear from notifying for fresh selectio n of candidates to be advised for the vacancies of tutors in Psychiatry till the disposal of the Original petition. (iv) T o issue any other writ, direction or order that this Honourabl e Court deems fit to grant in the circumstances of this petition. " The short ground on which the learned judge allowed the writ petition was that the petitioner's turn for appointment from the select list prepared on 27-2-73 did not reach and did not materialis e in view of certain stay orders issued by this Court and that it was a fundamental and well- recognise d principle that the act of court should not prejudice any person. For this the learned judge relied on the decision of the Supreme Court in Jang Singh versus Bri j La l & Others (AIR. 1966 SC 1631), and in particular the following statement of the principle made by the said Court "there is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position be would have occupied but for that mistake. This is aptly summed up in the maxim: ' Actu s Curiae nemine m gravabi t '. A perusal of the decision leaves us in no doubt that the principle thus enunciated by the Supreme Court cannot have any application to the facts and circumstances disclosed in the present case. It is a salutary principle recognise d by R. 3 (b)of the Kerala State & Subordinate Service Rules that inclusion in a select list confers no title to appointment. The said rule reads : "3 (b): The inclusion of a candidate's name in any list of approved candidates for any service (State or Subordinate) or any class or category in a service, shall not confer on him any claim to appointment to the service, class or category. &quot ; A Division Bench of this Court of which one of us ( Narendran J.) was a party ruled that the petitioner cannot contend merely on the strength of the inclusion of her name in the select-list published by the Public Service Commission that that she had acquired a legally enforceable right to be appointed to the post of Senior Language Teacher. (Vide Retnamm a v. Keral a Public Service Commission-1977 KLT 290 ). That being the principle recognised by the statutory rule and by the judicial decisions, the petitioner's prayers themselves appear to us misconceived. We are by no means persuaded that any injustice had been worked on the petitioner by the stay orders issued by this Court in the proceedings referred to by the learned judge. O. P. No. 4245 of 1972, which is one of such proceedings, was filed by three persons whose applications to the Public Service Commission had been rejected as defective and who were therefore not included in the select list. They prayed that they should be so included. The writ petition was dismissed. There was Writ Appeal No. 150 of 1973 against that judgment; and pending the writ appeal, a stay was issued by this Court against the Commission making appointments from the rank-list with which this case is concerned. The writ appeal was also eventually dismissed. The case pleaded before the learned judge and found by him seems to have been that but for the stay order issued by this court which had stayed the hands of the Public Service Commission the rank list prepared on 27-2-1973 could well have been resorted to and the petitioner's turn for appointment could well have been reached. We consider these circumstances as wholly inadequate to attract the maxim of ' Actus curiae' expounded by the Supreme Court, as noticed supra. Indeed, in the face of the statutory rule and the judicial exposition, we are unable to find any ground on which the petitioner can build up a case of prejudice or hardship. And we are not prepared to find these by hypothesising on possibilities or 'might have beens ' but for judicial intervention. We are of the opinion that interference under Art. 226 and the grant of the reliefs prayed for by the writ petitioner in the writ petition were unjustified and cannot be sustained. We allow this appeal, set aside the judgment of the learned judge and direct that O. P. No. 1423 of 1975 will stand dismissed. There will be no order as to costs. Allowed. . .