# ANEESH KUMAR V.S. & ORS v. STATE OF KERALA & ORS

- **Citation:** [2020] 5 S.C.R. 625
- **Court:** Supreme Court of India
- **Decided:** 2020-04-24
- **Case number:** Civil Appeal No. 2368 of 2020
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/aneesh-kumar-v-s-ors-v-state-of-kerala-ors-34563
- **Pages:** 31

## Headnote

Kerala Public Service Commission Rules of Procedure, 1976
- rr.13 and 14 - Applications invited for appointment to the posts
of Sub Inspector of Police (Trainee) - Selection process completed,
the Kerala Public Service Commission (KPSC) on 11.09.2013
published the first Ranked List (RL-I) - On 04.11.2013, KPSC issued
first advice on the basis of RL-I - KPSC's decision to have a unified/
consolidated ranked list was challenged by way of OA for not
having two lists; a main and a supplementary list (which would
include candidates from reserved category) - Tribunal granted
interim relief on 05.12.2013 - KPSC issued second advice in respect
of empanelled candidates in RL-I who had secured more than 49
marks on the basis of RL-I on 20.01.2014 - Tribunal allowed OA -
High Court dismissed the petitions - Supreme Court upheld the
consolidated RL-I - During the pendency of aforesaid SLPs, KPSC
released second Ranked List (RL-II) on 26.05.2015 and thereby
RL-I was treated as ceased to exist on 25.05.2015 - On 11.11.2015,
KPSC made final advice, third advice from RL-I - RL-III notified -
Aggrieved by publication of RL-II, appellants had filed OAs inter
alia seeking direction for issuance of advice on the basis of RL-I
(till that list ceases to exist) - Dismissed - Writ petitions filed by
appellants for direction inter alia to advice (or appoint) 93 Non
Joining Duty (NJD) vacancies on the basis of RL-I - DB referred
the matter to Full Bench which inter alia held that RL-I expired on
01.06.2016 - Held: On a plain reading of r.13 it is clear that the
Ranked List published by KPSC would remain in force for a period
of one year from the date it was brought into force - It continues to
be in force until the publication of a new list after the expiry of the
minimum period of one year or till the expiry of three years,
whichever is earlier - First proviso is an exception to the general
rule - It predicates that the general rule shall not apply in respect
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[2020] 5 S.C.R.
of Ranked List of candidates for admission to training courses that
leads to automatic appointment to services or posts - In such cases,
the Ranked Lists shall cease to be in force after one year from the
date of finalization of Ranked Lists or after one month from the
date of commencement of the course in respect of the last batch
selected from the list within a period of one year from the date of
finalisation of the Ranked Lists, whichever is later - RL-I was
published on 11.09.2013, but because of fortuitous situation, the
final (third) advice from RL-I was made by KPSC on 11.11.2015
and the last batch of 339 candidates so advised was sent for training
on 01.05.2016 - Resultantly, the consequence provided by first
proviso to r.13 got triggered, whereby RL-I ceased to operate in
law, w.e.f 01.06.2016 - Interim order passed by the Tribunal on
05.12.2013, in no way interdicted the operation of RL-I - As a matter
of fact, none of the advised candidates from RL-I had secured less
than 49 marks in preliminary examination- Appellants not entitled
to base their claim in reference to RL-I, which ceased to exist on
01.06.2016, by filing writ petition(s) on 12.10.2017 for the stated
reliefs - NJD vacancies reported after 01.6.16 must be filled up
from amongst the empanelled candidates in the fresh Ranked List,
RL-II published on 26.05.2015 or RL-III published on 14.03.2019,
as the case may be - Judgment of Full Bench upheld - Kerala High
Court Act, 1958 - s.7 - Constitution of India - Arts.142 and 309 -
Principles of Actus curiae neminem gravabit; lex non cogit ad impossibilia
- Service Law.
Practice & Procedure - Reference by Division Bench -
Exercise of jurisdiction by Full Bench - Discussed - Kerala High
Court Act, 1958 - s.7.
Dismissing the appeals, the Court
HELD: 1.1 Kerala High Court Act, 1958 provides for the
procedure on Reference to Full Bench. On a plain reading of
Section 7, it is amply clear that the Full Bench is competent to
finall

## Text

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625
[2020] 5 S.C.R. 625
625
ANEESH KUMAR V.S. & ORS.
v.
STATE OF KERALA & ORS.
(Civil Appeal No. 2368 of 2020)
APRIL 24, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Kerala Public Service Commission Rules of Procedure, 1976
- rr.13 and 14 - Applications invited for appointment to the posts
of Sub Inspector of Police (Trainee) - Selection process completed,
the Kerala Public Service Commission (KPSC) on 11.09.2013
published the first Ranked List (RL-I) - On 04.11.2013, KPSC issued
first advice on the basis of RL-I - KPSC's decision to have a unified/
consolidated ranked list was challenged by way of OA for not
having two lists; a main and a supplementary list (which would
include candidates from reserved category) - Tribunal granted
interim relief on 05.12.2013 - KPSC issued second advice in respect
of empanelled candidates in RL-I who had secured more than 49
marks on the basis of RL-I on 20.01.2014 - Tribunal allowed OA -
High Court dismissed the petitions - Supreme Court upheld the
consolidated RL-I - During the pendency of aforesaid SLPs, KPSC
released second Ranked List (RL-II) on 26.05.2015 and thereby
RL-I was treated as ceased to exist on 25.05.2015 - On 11.11.2015,
KPSC made final advice, third advice from RL-I - RL-III notified -
Aggrieved by publication of RL-II, appellants had filed OAs inter
alia seeking direction for issuance of advice on the basis of RL-I
(till that list ceases to exist) - Dismissed - Writ petitions filed by
appellants for direction inter alia to advice (or appoint) 93 Non
Joining Duty (NJD) vacancies on the basis of RL-I - DB referred
the matter to Full Bench which inter alia held that RL-I expired on
01.06.2016 - Held: On a plain reading of r.13 it is clear that the
Ranked List published by KPSC would remain in force for a period
of one year from the date it was brought into force - It continues to
be in force until the publication of a new list after the expiry of the
minimum period of one year or till the expiry of three years,
whichever is earlier - First proviso is an exception to the general
rule - It predicates that the general rule shall not apply in respect
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[2020] 5 S.C.R.
of Ranked List of candidates for admission to training courses that
leads to automatic appointment to services or posts - In such cases,
the Ranked Lists shall cease to be in force after one year from the
date of finalization of Ranked Lists or after one month from the
date of commencement of the course in respect of the last batch
selected from the list within a period of one year from the date of
finalisation of the Ranked Lists, whichever is later - RL-I was
published on 11.09.2013, but because of fortuitous situation, the
final (third) advice from RL-I was made by KPSC on 11.11.2015
and the last batch of 339 candidates so advised was sent for training
on 01.05.2016 - Resultantly, the consequence provided by first
proviso to r.13 got triggered, whereby RL-I ceased to operate in
law, w.e.f 01.06.2016 - Interim order passed by the Tribunal on
05.12.2013, in no way interdicted the operation of RL-I - As a matter
of fact, none of the advised candidates from RL-I had secured less
than 49 marks in preliminary examination- Appellants not entitled
to base their claim in reference to RL-I, which ceased to exist on
01.06.2016, by filing writ petition(s) on 12.10.2017 for the stated
reliefs - NJD vacancies reported after 01.6.16 must be filled up
from amongst the empanelled candidates in the fresh Ranked List,
RL-II published on 26.05.2015 or RL-III published on 14.03.2019,
as the case may be - Judgment of Full Bench upheld - Kerala High
Court Act, 1958 - s.7 - Constitution of India - Arts.142 and 309 -
Principles of Actus curiae neminem gravabit; lex non cogit ad impossibilia
- Service Law.
Practice & Procedure - Reference by Division Bench -
Exercise of jurisdiction by Full Bench - Discussed - Kerala High
Court Act, 1958 - s.7.
Dismissing the appeals, the Court
HELD: 1.1 Kerala High Court Act, 1958 provides for the
procedure on Reference to Full Bench. On a plain reading of
Section 7, it is amply clear that the Full Bench is competent to
finally decide the case itself. It is an enabling provision. Full Bench
was fully conscious about the limited scope of enquiry in Reference
placed before it, but after due consideration of all aspects, deemed
it necessary to analyse the factual matrix of the case in its correct
perspective to justly answer the Reference. In the process, the
Full Bench had to deviate from the observation made by the
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Division Bench that the candidates empanelled in the first Ranked
List (RL-I) ought to be advised for appointment to fill up the 93
NJD vacancies reported on 12.7.2016, as, in its view, in law, the
first Ranked List (RL-I) had expired on 1.6.2016. In other
words, the Full Bench was fully conscious of the scope of its
jurisdiction, as is evinced from the opening statement, in
paragraph four of the impugned judgment. After recording the
factual matrix and rival submissions, in paragraph 47 of the
impugned judgment, the Full Bench noted that it was proceeding
to answer the legal contentions within the parameters of the
applicable law and after adverting to Rules 13 and 14 of the 1976
Rules, it analysed the factual matrix to conclude that since the
last batch was advised by the KPSC from the first Ranked List
(RL-I) on 11.11.2015 and it had joined training on 1.5.2016 in
terms of first proviso to Rule 13, the first Ranked List (RL-I)
ceased to operate from 1.6.2016 (namely, on completion of one
month from 1.5.2016). In the peculiar facts of this case, the Full
Bench had no other option but to analyse the factual matrix for
ascertaining the applicability of extant rules and to answer the
matters in issue involved in Reference appropriately. Suffice it
to observe that the impugned judgment cannot be overturned on
the basis of threshold (technical) plea under consideration. No
fruitful purpose will be served by relegating the parties before
the High Court on technicality. [Paras 22, 23][645-C; 646-G-H;
647-A-C; F-H]
T. A. Hameed v. M. Viswanathan (2008) 3 SCC 243 :
[2008] 3 SCR 210; State of Punjab v. Salil Sabhlok &
Ors. (2013) 5 SCC 1 : [2013] 5 SCR 18 - relied on.
1.2 On a plain reading of Rule 13, it is amply clear that the
Ranked List published by the Commission (KPSC) would remain
in force for a period of one year from the date on which it was
brought into force. It further envisages that the said list will
continue to be in force until the publication of a new list after the
expiry of the minimum period of one year or till the expiry of
three years, whichever is earlier. The first proviso is an exception
to the general rule. It predicates that the general rule shall not
apply in respect of Ranked List of candidates for admission to
training courses that leads to automatic appointment to services
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
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or postsand that in such cases, the Ranked Lists shall cease to
be in force after one year from the date of finalization of the Ranked
Lists or after one month from the date of commencement of the
course in respect of the last batch selected from the list within a
period of one year from the date of finalisation of the Ranked
Lists, whichever is later. It is only this excepted eventuality which
may elongate the tenure of the Ranked List published by the
Commission (KPSC) beyond one year. The first Ranked List
(RL-I) was published on 11.9.2013, but because of fortuitous
situation, the final (third) advice from the first Ranked List
(RL-I) was made by the KPSC on 11.11.2015 and the last batch
of 339 candidates so advised was sent for training on 1.5.2016.
Resultantly, the consequence provided by the first proviso to
Rule 13 got triggered, whereby the first Ranked List (RL-I)
ceased to operate in law, with effect from 1.6.2016. The Court is
in agreement with the analysis of factual matrix of the case
undertaken by the Full Bench. The interim order passed by the
Tribunal on 5.12.2013, in no way interdicted the operation of the
first Ranked List (RL-I). As a matter of fact, none of the advised
candidates from the first Ranked List (RL-I) had secured less
than 49 marks in the preliminary examination. In any case, the
original application(s) filed by the appellants before the Tribunal
came to be disposed of on 20.2.2014, which order eventually
became subject matter of Civil Appeal No. 8536/2015 and
connected appeal before this Court. The operation of the first
Ranked List (RL-I) was in a way interdicted for the first time on
account of interim order passed by this Court on 3.11.2014, which
stood vacated whilst allowing the Civil Appeal on 13.10.2015.
The one-year period referred to in Rule 13 of the 1976 Rules, as
per the general application, would have expired on 10.9.2014.
There was no complete interdiction of the stated list until
3.11.2014 and for that reason, the KPSC was justified in issuing
advice even after the interim order was passed by the Tribunal,
namely, on 20.1.2014 (before the status quo order was passed by
this Court for the first time on 3.11.2014). The final advice was
admittedly issued on 11.11.2015 after the disposal of civil appeals
by this Court on 13.10.2015. Pursuant to the final (third) advice,
the last batch of 339 empanelled candidates from the first Ranked
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List (RL-I) was sent for training on 1.5.2016, as a result of which
the first Ranked List (RL-I) ceased to exist on expiry of one
month therefrom i.e. on1.6.2016. This conclusion has been justly
arrived at by the Full Bench disregarding the decision of the
KPSC, dated 26.10.2015 to treat the first Ranked List (RL-I)
having ceased to exist due to publication of second Ranked List
(RL-II) on 26.5.2015. [Paras 24-26][650-C-G; 652-G-H;
653-A-E]
1.3 Admittedly, all the appellants were empanelled in the
first Ranked List (RL-I), which, as aforementioned, had ceased
to exist on 1.6.2016. Resultantly, the appellants cannot set up
any claim in respect of vacancies reported thereafter. The NJD
vacancies reported after 1.6.2016 must be filled up from amongst
the empanelled candidates in the fresh Ranked List (i.e. the
second Ranked List (RL-II) published on 26.5.2015 or the third
Ranked List (RL-III) published on 14.3.2019, as the case may
be). [Para 27][654-A-B]
1.4 Grievance about publication of the second Ranked List
(RL-II) during the pendency of appeal before this Court and
despite the order of status quo, was not pursued before this Court
on behalf of the appellants. The order of status quo though
interdicted processing of the first Ranked List (RL-I), that
restriction stood lifted with setting aside of the decisions of the
Tribunal and the High Court and allowing the appeal on
13.10.2015. Sans any direction by this Court and challenge to
publication of the second Ranked List (RL-II) on 26.5.2015,
nothing came in the way of the respondents to proceed with the
final advice made on 11.11.2015 relating to 339 empanelled
candidates from the first Ranked List (RL-I), who in turn,
commenced their training on 1.5.2016. The appellants were not
entitled to base their claim in reference to the first Ranked List
(RL-I), which had ceased to exist on 1.6.2016, by filing writ
petition(s) on 12.10.2017 for the stated reliefs. As the first Ranked
List (RL-I), in law, ceased to exist from 1.6.2016, no relief could
be granted to the appellants and the principles of actus curiae
neminem gravabit and lex non cogit ad impossibilia will be of no
avail, as it was not a case of any prejudice caused to the appellants
on account of Court order as such. [Paras 30, 31][655-A-E]
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
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S. S. Balu & Anr. v. State of Kerala & Ors. (2009) 2
SCC 479 : [2009] 1 SCR 196; Shankarsan Dash v.
Union of India (1991) 3 SCC 47 : [1991] 2 SCR 567;
Jang Singh v. Brij Lal & Ors. [1964] 2 SCR 145; Atma
Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 :
[1988] 2 Suppl. SCR 528; South Eastern coalfields Ltd.
v. State of M.P. & Ors. (2003) 8 SCC 648 : [2003] 4
Suppl. SCR 651; Union of India & Ors. v. Kali Dass
Batish & Anr. (2006) 1 SCC 779 : [2006] 1 SCR 261;
Dr. M. A. Haque & Ors. v. Union of India & Ors. (1993)
2 SCC 213 : [1993] 2 SCR 1; K. Thulaseedharan v.
Kerala State Public Service Commission Trivandrum &
Ors. (2007) 6 SCC 190 : [2007] 5 SCR 1042; Deepa
Keyes v. Kerala State Electricity Board & Anr. (2007) 6
SCC 194; Secretary, Kerala Public Service Commission
v. Sheeja P. R. & Anr. (2013) 2 SCC 56 : [2013] 1 SCR
182; Nair Service Society v. Distt. Officer, Kerala
Service Commission and Ors. (2003) 12 SCC 10 : [2003]
5 Suppl. SCR 551- referred to.
Kerala Public Service Commission v. Dr. Kesavankutty
Nair & Ors. ILR 1977 (2) Kerala 687; Kerala Public
Service Commission v. Shanil Kumar (2002) 1 KLT 604;
Lal Sudheer and Ors. v. Kerala State Road Transport
Corporation & Anr. (2003) 1 KLT 329 - referred to.
Case Law Reference
[2009] 1 SCR 196
referred to
Para 12
[1991] 2 SCR 567
referred to
Para 12
[1964] 2 SCR 145
referred to
Para 16
[1988] 2 Suppl. SCR 528
referred to
Para 16
[2003] 4 Suppl. SCR 651
referred to
Para 16
[2006] 1 SCR 261
referred to
Para 19
[1993] 2 SCR 1
referred to
Para 20
[2007] 5 SCR 1042
referred to
Para 20
(2007) 6 SCC 194
referred to
Para 20
[2008] 3 SCR 210
relied on
Para 22
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[2013] 5 SCR 18
relied on
Para 22
[2013] 1 SCR 182
referred to
Para 27
[2003] 5 Suppl. SCR 551
referred to
Para 27
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2368
of 2020.
From the Judgment and Order dated 21.02.2019 of the High Court
of Kerala at Ernakulam in OP (KAT) No. 408 of 2017.
With
C.A. Nos. 2369, 2370 and 2371 of 2020
Dushyant Dave, P.V. Surendranath, Sr. Advs., Sanand
Ramakrishnan, Rajeev Mishra, Anzu. K. Varkey, N.P. Rakeesh Panicker,
Prakash Ranjan Nayak, Resmitha R. Chandran, Ms. Lekha Sudhakran,
Vipin Nair, P.B. Suresh, Karthik Jayashankar, G. Prakash, Rajiv Shankar
Dvivedi, Sushant Kumar Sarkar, Rishabh Jain, Renjith B. Marar,
Ms. Lakshmi N. Kaimal, Mahendra Kumawat, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Leave granted.
2. This batch of appeals, by special leave, are against the final
judgment and order dated 21.2.2019 passed by the Full Bench of the
High Court of Kerala at Ernakulam (for short, "the High Court") in O.P.
(KAT) Nos. 256/2017, 330/2017 and 408/2017 pursuant to a Reference
Order by the Division Bench, bearing the same case numbers, passed
on 16.11.2018.
3. In a nutshell, the appellants have preferred these appeals to be
advised (or appointed) against 93 Non-Joining Duty (for short, "NJD")
vacancies reported to the Kerala Public Service Commission (for short,
"the KPSC") on 12.7.2016 relating to the post of Sub Inspector of Police
(Trainee). Respondents declined that demand on the ground that the
Ranked List dated 11.9.2013 [for short "first Ranked List
(RL-I)"](wherein the appellant(s)have been empanelled), had expired
before the stated vacancies came to be reported. This Court vide order
dated 24.9.2019, called upon the respondents to explore the possibility of
issuing advice for 31 left out candidates (appellants and similarly placed
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
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persons) against the 34 NJD vacancies still available. However, vide
notification dated 18.11.2019, the State of Kerala (respondent No. 1)
declined to do so due to administrative and legal reasons, cementing
their stand that the first Ranked List (RL-I) had already expired before
the vacancies were reported.
Factual Background
4. Pursuant to a gazette notification issued on 28.9.2007,
applications were invited for appointment to the abovementioned posts,
allocated into three different categories (namely, Category 315/2007 for
open quota, Category 316/2007 for ministerial quota and Category
317/2007 for constabulary quota). The KPSC having received large
number (around 42,000) of applications than anticipated, decided to
conduct a preliminary objective test. That test was carried out to prune
the list of eligible candidates, for which 49 marks were specified as cutoff marks. On the basis of that test, a list was prepared. However, the
KPSC then realised that the said list did not have enough candidates
from reserved categories and thus, it decided to reduce the cut-off marks
for reserved categories upto 32 marks; and to draw up a fresh list to
include all qualified candidates. After completing the selection process
as mentioned in the notification, on 11.09.2013 the KPSC published the
first Ranked List (RL-I). On 4.11.2013, the KPSC issued advice on the
basis of the first Ranked List (RL-I) against 9 fresh vacancies (for short,
"first advice") which included the vacancies occurred from the date of
the notification till 17.10.2013.
5. The aggrieved candidates approached the Kerala Administrative
Tribunal (for short, "the Tribunal"), by way of O.A. 2395 of 2013 and
other such applications against the decision of the KPSC to have a unified/
consolidated ranked list and for not having two lists; a main and a
supplementary list (which would include candidates from reserved
category).They prayed for interim relief(s), which read thus: -
"This Hon'ble Tribunal may be pleased to direct the 3rd respondent
not to advice any candidates who secured less than 49 marks in
the preliminary examination, from Annexure A6 rank list against
the vacancies available for open competition candidates, pending
disposal of the Original Application."
While admitting the O.A. on 5.12.2013 [after 85 days from the
publication of the first Ranked List (RL-I)], the Tribunal granted interim
relief as prayed and observed thus: -
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"... ... ... if any candidate who secured less than 49 marks in the
preliminary examination has been advised against open competition
turn, his advice and appointment shall be subject to further orders
in this Original Application and such candidates shall be alerted
about this order by the third respondent... ... ..."
The KPSC, during the pendency of proceedings issued another
advice in respect of empanelled candidates in the first Ranked List
(RL-I) who had secured more than 49 marks against a total of 12
vacancies on the basis of the first Ranked List (RL-I) on 20.1.2014 (for
short, "second advice").
6. On 20.2.2014, the Tribunal allowed the O.A. by directing the
KPSC to re-cast the first Ranked List (RL-I) by bifurcating it into main
list and the supplementary list. It held thus: -
"28. In the result, the applicants are entitled to succeed.
Accordingly, the PSC is ordered to recast Annexure A6
rank list with main list and supplementary lists.The
candidates who secured 49 and above marks in the objective
type examination alone shall be included in the main list of
Annexure A6. Those candidates who participated in the further
selection process after the objective type examination, but without
obtaining 49 marks in that examination shall be included in the
supplementary lists for the respective communities. Even if any
candidates included in the supplementary lists obtained more marks
than the candidates included in the main list, they are not eligible
for inclusion in the main list. The advice and appointment, if any,
from Annexure A6 of candidates who secured less than 49 marks
in the objective type examination being dependent proceedings
will naturally collapse and fall to ground. The advice of such
candidates shall be reviewed and recalled by the PSC and
appointments, if any, made of them or the orders sending them for
training are null and void and they have no legal efficacy. It is so
declared. The State Police Chief shall recall them. The PSC shall
publish a revised rank list in the place of Annexure A6 within one
month from the date of receipt of a copy of this order. The advices
made of ineligible persons, in the light of the revised rank list, shall
be reviewed and cancelled within one month thereafter. The
advice and appointment of candidates and their sending for
training, etc. who are otherwise eligible will not be affected
by this order. That means, they can go for training. Only
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
[A. M. KHANWILKAR, J.]
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the candidates who got less than 49 marks in the objective
type examination and are sent for training before their turn
arose, as per the revised rank list shall be recalled.
 (emphasis supplied)
The order of the Tribunal was assailed before the High Court by
way of writ petitions (O.P. (KAT) Nos. 108/2014, 110/2014, 112/2014
and 114/2014). While admitting the said petitions on 12.3.2014, the High
Court issued an order whereby it restrained the KPSC to advise any
further candidate who had secured less than 49 marks in the objective
test. Vide judgment dated 8.8.2014, the High Court eventually dismissed
the petitions and upheld the Order passed by the Tribunal.Two appeals
to this Court by special leave were then preferred by the aggrieved
candidates against the decision of the High Court, bearing S.L.P. (C)
Nos. 28428/2014 and 28743/2014, wherein on 3.11.2014 [418 days after
the publishing of the first Ranked List (RL-I)], this Court issued notice
and ordered thus: -
"Issue notice. Dasti, in addition, is permitted.
Status quo, as on today, shall be maintained in the meantime"
On 13.10.2015, the civil appeals were finally allowed and the
judgments of the Tribunal and the High Court were set aside; and the
consolidated first Ranked List (RL-I) dated 11.9.2013 came to be upheld.
Pursuant to the disposal of the civil appeals by this Court, the KPSC on
11.11.2015 made a third and final advice (for short, "third advice") from
the first Ranked List (RL-I), which included vacancies occurred from
31.01.2014 till 31.01.2015.
Advice made from the first Ranked List (RL-I)
Date
of
Receipt
Date
of
Requisition
Date
of
Occurrence
No.
&
Nature
of
Vacancy
Date of Advice
No.
of
unfilled
vacancies
Remarks
29.06.2007
29.04.2009
9 Fresh
04.11.2013
NIL
08.02.2012
10.02.2012
132 Fresh
12.09.2012
13.09.2012
25 Fresh
08.03.2013
12.03.2013
27 Fresh
29.07.2013
29.07.2013
63 Fresh
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1. On 19.04.2016, vide letter by The Inspector General of Police (Training), the
candidates advised on 11.11.2015, were provisionally appointed. Their training was to
start on 01.05.2016 and failure to report would entail as reporting of the vacancy to
PSC.
7. However, during pendency of Civil Appeals (C.A. Nos. 8356/
2015 and 8537/2015 @ SLP(C) Nos. 28428/2014 and 28743/2014),the
KPSC had released a new list on 26.5.2015 [for short, "second Ranked
List (RL-II)"] and thereby the first Ranked List (RL-I)was treated as
ceased to exist on 25.5.2015.
Advice made from the second Ranked List (RL-II)
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
[A. M. KHANWILKAR, J.]
15.10.2013
17.10.2013
24 Fresh

02.12.2013
06.12.2013
12 Fresh
20.01.2014

22.02.2014
17.02.2014
31.01.2014
36 Fresh

03.03.2014
22.02.2014
NA
5 NJD

12.05.2014
29.04.2014
15.04.2014
3 Fresh

25.07.2014
10.07.2014
30.06.2014
9 Fresh

23.07.2014
23.07.2014
NA
9 NJD

02.08.2014
01.08.2014
31.07.2014
12 Fresh
11.11.20151
21.10.2014
21.10.2014
15.10.2014
3 Fresh + 2
NJD
05.11.2014
05.11.2014

137 Fresh

23.02.2015
20.02.2015
31.01.2015
5 Fresh

22.08.2015
22.08.2015
31.01.2015
118 Fresh

Total advise: 631. Rank list expired on
25.05.2015
1
Date of Receipt
Date of
Requisition
No. & Nature of
Vacancy
Date of Advice
No. of Unfilled
Vacancies
Remarks
19.10.2015
07.10.2015
1 NJD
23.07.2018
12.07.2016
12.07.2016
93NJD
26.02.2019
Advised as per
Court Order
11.05.2018
11.05.2018
162 Fresh
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8. Be that as it may, on 14.3.2019 the KPSC notified a subsequent
list [for short, "third Ranked List (RL-III)"] for the said post.
Advice made from the third Ranked List(RL-III)
9. It may be apposite to also refer to other parallel litigation(s)
concerning the first Ranked List (RL-I), which may have bearing on the
outcome of these Civil Appeals; First, candidates from the first Ranked
List (RL-I) had approached the Tribunal vide O.A. No. 440/2014 against
the KPSC, seeking reporting of vacancies. The same came to be
dismissed by the Tribunal vide order dated 21.3.2014. However, the High
Court (in O.P. (KAT) 200 of 2014) vide order dated 26.8.2014, directed
23.05.2018
23.05.2018
12 Fresh + 5 AV
23.07.2018
* Only 5
advised.
12
advised
later.
25.05.2018
25.05.2018
2 NJD
23.05.2018
23.05.2018
17 (12 vacancies
advised)
25.07.2018
11.07.2018
11.07.2018
9 Fresh
23.07.2018
Total advise: 284.
Ranked List expired on 25.07.2018
Date of
Receipt
Date of
Requisition
Date of
Occurrence
No. & Nature
of Vacancy
Date of
Advice
No. of
unfilled
vacancies
Remarks
16.10.2018
15.10.2018
28 NJD
08.04.2019
30.10.2018
30.10.2018
11 NJD
31.10.2018
30.10.2018
30.10.218
8 NJD + 1
Fresh
10.04.2019
09.04.2019
19.12.2018,
12.03.2019,
03.03.2019
10 Fresh + 15
NJD
09.05.2019
25.05.2019
24.05.2019
10.04.2019,
31.10.2018
19 NJD + 2
Fresh
07.06.2019
10.04.2019
03.03.2019
20 Fresh
09.05.2019
Only reported
on 31.10.2018
17.07.2019
08.07.2019
14 NJD
Rotation
approved on
06.08.2019.
But not
released.
20.08.2019
15.08.2019
20 NJD
To be advised
16.10.2019
16.10.2016
30.08.2019,
10.10.2019 (2
Fresh)
19 NJD + 2
Fresh
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Respondent No. 2 herein (the State Police Chief, Headquarters) to report
50% of 274 (i.e., 137) vacancies, to be filled by direct recruitment, so
that the KPSC can advise the candidates in an expeditious manner. Failure
on the part of the authority to report about the stated vacancies, gave
rise to Contempt Case (C) 562 of 2015. However, after the status quo
order passed by this Court (dated 3.11.2014) was brought to the notice
of the High Court, the contempt case came to be dismissed; and the
special leave petitions (S.L.P. (C) Nos. 2023-24 of 2016) preferred against
that order were also dismissed by this Court; Second, some candidates
empanelled in the first Ranked List (RL-I)had approached the Tribunal
(in O.A. 2383 of 2014) for reporting of existing vacancies, as the first
Ranked List (RL-I) was to expire soon. Vide order dated 13.7.2015, the
Tribunal directed that a total of 118 vacancies be reported to the KPSC
and the KPSC to issue advice qua the reported vacancies forthwith.
10. Due to publication ofthe second Ranked List (RL-II),
applications (O.As.) were preferred before the Tribunal by aggrieved
candidates including the appellants, seeking direction for reporting of
vacancies and issuance of advice on the basis of the first Ranked List
(RL-I) (till that list ceases to exist) and to declare that the first Ranked
List (RL-I) was valid and had not expired and would remain in force till
the expiry of one month from the date on which the last batch of
candidates is advised from that list (in accordance with the first proviso
to Rule 13 of the Kerala Public Service Commission Rules of Procedure,
1976 - for short, "the 1976 Rules").The Tribunal while admitting the
O.As. (O.A. No. 306 of 2016 and connected O.As.), vide order dated
5.4.2016, directed provisional reporting of 285 vacancies before 11.4.2016
and that no advice be made against those provisional reported vacancies.
On 14.7.2017, after analysing the 1976 Rules, the Tribunal dismissed the
applications by observing thus: -
"Accordingly, we hold as follows: -
(a) The ranked list dated 11.9.2013 has expired on 26.5.2015 due
to cancellation by the Public Service Commission.
(b) The sanctioned strength being 2024, for direct recruitment
50% of the same (1012) will have to be reckoned.
(c) There are no other excess vacancies to be reported for filling
up the 50% quota except 93 NJD vacancies reported on 12.7.2016.
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
[A. M. KHANWILKAR, J.]
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(d) The NJD vacancies will have to be filled up by advising
candidates from the ranked list dated 26.5.2015 for which the
Public Service Commission is directed to take steps.
................."
11. The appellants, therefore, preferred writ petitions before the
High Court seeking direction to report 362 vacancies, to advice 93 NJD
vacancies on the basis of the first Ranked List (RL-I) and to declare the
decision of the KPSC of cancelling the first Ranked List (RL-I) as illegal,
amongst other reliefs. On 16.11.2018, the Division Bench of the High
Court passed a "Reference Order", thereby referred the matter to Full
Bench, having noticed the decision of a Co-ordinate Bench, which in its
opinion was debatable. However, the Division Bench also made certain
observations. It observed that the first Ranked List (RL-I) was in
operation only for 85 days (till 5.12.2013 - due to an interim order passed
by the Tribunal) and that there remained a total period of 280 days for
completion of the duration of the first Ranked List (RL-I)after 13.10.2015
in accordance with the respective Rules. Thus, it held that the first Ranked
List (RL-I)expired only on 19.7.2016. The Division Bench then proceeded
to observe that there cannot be an automatic cancellation of the first
Ranked List (RL-I), thereby it must remain in force for a minimum period
of one year (till 19.7.2016). It concluded by observing that the 93 NJD
vacancies reported on 12.7.2016, should be filled up by the candidates
empanelled in the first Ranked List (RL-I). The Division Bench, however,
noticedthe dictum in Kerala Public Service Commission vs. Dr.
Kesavankutty Nair & Ors.2 wherein the maxim actus curiae neminem
gravabit was not held to be applicable to decide the life of a Ranked
List. The Division Bench observed thus:-
"10. But we are confronted with the decision in Kerala Public
Service Commission v. Dr. Kesavankutty Nair [1977] KLT 818
(DB)]cited by the contesting respondents which may have a
bearing on this batch of cases. It has been held therein that the
maxim - actus curiae neminem gravabit - cannot be made
applicable to decide the life of a ranked list published by the PSC.
The reason stated is that inclusion of the name of a candidate in a
ranked list does not confer him any right to claim appointment
relying on Rule 3(b) of the Kerala State & Subordinate Services
2 ILR 1977 (2) Kerala 687
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Rules. Firstly, we fail to understand the relevancy of Rule 3(b) of
the KS & SSR in the applicability of the maxim afore-quoted
which can be called in aid by any one prejudiced by an act of
Court. Secondly, the decision in Dr. Kesavankutty Nair's case
(supra) concerned a ranked list published on 27.2.1973 much
before the Rules came into force on 16.8.1976. The Division
Bench obviously did not have the opportunity to consider
the purport and import of the words 'shall remain in force
for a period of one year' in Rule 13 of the Rules. We doubt
the correctness of the decision in Dr. Kesavankutty Nair's
case (supra) and judicial propriety compels us to refer this
batch of cases to a Full Bench therefore."
(emphasis supplied)
12. The Full Bench vide impugned judgment dated 21.2.20193,
analysed Rules 13 and 14 of the 1976 Rules and held that Rule 14
mandates the KPSC to advise candidates from a Ranked List in force in
respect of all the vacancies reported and pending before them, as also in
respect of vacancies which may be reported to them during the period
the said Ranked List is still in force, and such candidates would get
guaranteed entitlement for being considered against the reported
vacancies. However, after going through the various orders passed and
taking into account the efficacy of the first proviso to Rule 13, the Full
Bench held that the first Ranked List (RL-I) expired on 1.6.2016. For,
admittedly, the last batch in reference to the first Ranked List (RL-I)
was advised by KPSC on 11.11.2015; and their training had begun on
1.5.2016.The Full Bench then adverted to the settled legal position
regarding the maxim of actus curiae neminem gravabit, which means
the act of the Court shall prejudice no one. It observed that no prejudice
had been caused to any of the appellants in these cases. Further, even
if there was to be no litigation(s) and even if there were to be no interim
order(s) issued, the empanelled candidates would get advisement only
against the vacancies reported during the life of the Ranked List.
However, in this case,the first Ranked List (RL-I) had already expired
on 1.6.2016, before the 93 NJD vacancies were reported to the KPSC
on 12.7.2016. Lastly, the Full bench adverted to Dr. Kesavankutty
Nair (supra) and noted that the principle enunciated therein (that
candidates included do not gain an indefeasible right to be appointed) is
3Unnikrishnan Nair G.S. and Anr. vs. State of Kerala and Ors. 2019 (2) KLJ 152
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
[A. M. KHANWILKAR, J.]
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restated in judgments of this court including (in S.S. Balu & Anr. vs.
State of Kerala & Ors.4 and Shankarsan Dash vs. Union of India5)
and thus it needed no further discussion. In conclusion, the Full Bench
observed thus:-
"88.To sum up:
(a) Normally, it is only in two specific contingencies can the expiry
of a rank list obtain postponement; namely, if a court interdicts the
appointing authorities from reporting vacancies to the Public
Service Commission during its life time; or, if a court prohibits the
Public Service Commission from making advice from the rank list
within the period of one year or such other periods as may be
statutorily prescribed, after it is brought into force.
(b) Therefore, in the case at hand, going by the first proviso to
Rule 13 of the Kerala Public Service Commission Rules of
Procedure, the Rank List dated 11.09.2013 will expire on
completion of one month after the training of the last batch advised
from it commenced.
(c) Since the date of commencement of training of the last batch
was concededly on 01.05.2016, axiomatically, the Rank List dated
11.09.2013 would expire on 01.06.2016.
(d) Consequently, the 93 Non Joining Duty vacancies admittedly
reported on 12.07.2016 cannot go to the credit of the candidates
included in the Rank List dated 11.09.2013.
(e) The principles of actus curiae neminem gravabit are not
attracted in these cases, since the petitioners and other candidates
in the Rank List dated 11.09.2013 have obtained all the vacancies
that would have been entitled to them even if there were no
litigations or interim orders.
(f) The views and conclusions in Kerala Public Service
Commission v. Dr. Kesavankutty Nair (1977 KLT 818), that a
candidate in a rank list does not get an indefeasible right to be
appointed, is certainly good law and such position does not change
even after the coming into force of the PSC Procedure Rules
because these Rules only offer the candidates, included in a rank
list, a statutory right to be considered against the vacancies
4 (2009) 2 SCC 479
5 (1991) 3 SCC 47
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641
available and reported during the life time of such list, but not to
be appointed.
That brings us to the question if these original petitions need to be
placed before the Division Bench for final resolution or whether
we would be justified in issuing judgment.
Since the relief prayed for in these original petitions, except O.P.
(KAT) no. 362/2017, are exclusively for appointment from the
Rank List brought into force on 11.09.2013, to the 93 NJD
vacancies reported on 12.07.2016 and since our answer to this
claim is to the negative, we are of the view that nothing else
survives in these original petitions and resultantly, invoking powers
under Section 7 of the Kerala High Court Act, we dismiss those
Original Petitions.
... ... ... "
Submissions of the Parties
13. The appellants have assailed the approach of the Full Bench.
According to the appellants, the Full Benchpalpably erred in examining
the issues, in particular factual aspects,that were already decided by the
Division Bench. It could have only discussed the issue or question referred
to it by the Division Bench regarding the correctness and applicability of
the dictum in Dr. Kesavankutty Nair (supra). In the present case, the
Division Bench had already allowed the appellant's prayers, by directing
the KPSC to advise candidates from the first Ranked List (RL-I) and
holding that the first Ranked List (RL-I) expired on 19.7.2016, therefore,
the Full Bench could not have deviated from that finding of fact.
14. It is further submitted that the plea taken by the Respondent
No. 2 (State Police) and the Respondent No. 3 (KPSC) is against their
own admission of there being no "further selection process related to
this post"6 due to the status quo order passed by this Court on 3.11.2014
and until final disposal of civil appeal on 13.10.2015. Therefore, the
decision of the KPSC entails retrospective cancellation of the first Ranked
List (RL-I) on 25.5.2015; and also publication of a new list (second
Ranked List on 26.5.2015), thereby treating the first Ranked List (RL-I)
as "ceased to exist" on 25.5.2015. This action was wholly arbitrary and
impinged upon the rights of the appellants enunciated in Rule 14 of the
6In Counter Affidavit of Contempt Case (C) 562 of 2015
ANEESH KUMAR V.S. & ORS. v. STATE OF KERALA & ORS.
[A. M. KHANWILKAR, J.]
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1976 Rules. It is also submitted that KPSC was empowered under the
1976 Rules (Rule 10) to adopt a special procedure regarding such cases
in order to reduce the hardship to be caused to the candidates and who
were prejudiced due to no fault of theirs.
15. The appellants adopted the view taken by the Division Bench
regarding the date of expiry of the first Ranked List (RL-I)being 19.7.2016
due to the judicial intervention vide interim order(s) passed, as a result
whereof an embargo was placed on giving effect to the first Ranked
List (RL-I) for a period of 22 months (from 5.12.2013 till 13.10.2015).
Further, contended the appellants, the KPSC and the State Police had
failed to adhere to the order passed by the Tribunal (dated 5.4.2016 in
O.A. No. 306 of 2016 and connected O.As.) to report existing vacancies
and to refrain from issuing any further advice. The appellants are also
aggrieved by the inaction of the KPSC and the State Police in particular,
for non-reporting and delayed reporting of the existing vacancies,even
when several vacancies had already arisen due to NJD during the life of
the first Ranked List (RL-I) and instead in doing so on 12.7.2016.
According to the appellants, it was the fault of the Respondents, which,in
no way,can be attributed to the appellants.
16. The appellants have invoked the maxim actus curiae neminem
gravabit. According to them, it is the duty of the Court to act equitably.
The appellants drew support from the judgments of this Court in Jang
Singh vs. Brij Lal& Ors.7, Atma Ram Mittal vs. Ishwar Singh Punia8
and South Eastern Coalfields Ltd vs. State of M.P. & Ors.9.
17. The appellants rest their case by submitting that there are
sufficient vacancies and only 22 candidates from the first Ranked List
(RL-I) are left pursuing their rights before this Court either directly or
through applications. Therefore, this Court ought to invoke Article 142
of the Constitution of India and to do complete justice to the parties,direct
KPSC to issue advice to accommodate the left out 22 candidates from
the first Ranked List (RL-I) against the existing vacancies.
18. The respondents have supported the conclusions recorded by
the Full Bench.