BY AD v. P.N.SANTHOSH

This original petition is filed by the first respondent – Secretary of the Kerala Public Service Commission (For short “KPSC”). In this original petition, the KPSC challenges an order of the tribunal directing personal appearance of the Secretary of the KPSC for non-compliance of the order of the tribunal, which was affirmed by this Court.

2. The order of the tribunal reads thus: “The Original Application is accordingly disposed of directing the third respondent to inimate 12 vacancies of Agricultural Assistants Grade II as regular vacancies for advice and appointment against 12 provisionally reported vacancies, within a period of three weeks from the date of receipt of a copy of this order. On receipt of such intimation, the Public Service Commission, i.e., the second respondent will ensure that adivices are issued within a period of two weeks therefrom. On receipt of the advices, the second respondent will ensure that the appointment orders are issued without further delay." This was challenged before this Court by the State in O.P (KAT) No.110 of 2012 and this Court dismissed the same.

3. It is to be noted that the KPSC has not challenged the order of this Court as the KPSC is only bound to advise candidates if vacancies are reported to them before the expiry of the list. OP(KAT) NO. 463 OF 2023 ..3..

4. The seven vacancies reported to the KPSC as seen from the proforma for reporting vacancies are as follows: Whethet the vacancy reported is a fresh one caused by retirement/promotion/c reation/deputaion etc. Or NJD vacancy, i.e., vacancy caused by the not joining duty of a candidate advised earlier 1 Not Joining Duty Vacancy 15.03.2022 -1 (One Only) 2 Not Joining Duty Vacancy 09.12.2022 -1 (One Only) 3 Fresh Vacancy on

13.06.2023 -1 (One Only) 4 Fresh Vacancy on

12.06.2023 -1 (One Only) 5 Fresh Vacancy on

12.01.2023 -1 (One Only) 6 Fresh Vacancy on

18.03.2023 -1 (One Only) 7 Fresh Vacancy on

12.06.2023 -1 (One Only)

5. The list expired on 03.09.2021. As seen from the proforma for reporting vacancies, the Agricultural Department reported the vacancies as above, which arose after the expiry of the list. Therefore, the KPSC was not in a position to issue any advice. Overlooking this fact, the tribunal is proceeding against the Secretary of the KPSC. If these vacancies were available as noted by the tribunal as well as this Court as part of 12 vacancies, necessarily this ought to have been shown as a vacancy arose prior to the expiry of the list. Anyway, OP(KAT) NO. 463 OF 2023 ..4.. as affirmed by this Court, there are 12 vacancies; and unless these vacancies shown as vacancies arose prior to the expiry of the list, KPSC cannot advise any candidate. Therefore, if there was any violation, that violation in fact, is attributable to the second respondent. Proceeding against KPSC would arise only when those vacancies have been pointed out to arisen prior to expiry of the list. In such circumstances, we are of the view that the impugned order directing the petitioner to appear, is unsustainable. The tribunal can proceed further with the contempt case against the KPSC only on the finding that all these vacancies are reported prior to the expiry of the list and the same have not been advised by the KPSC. In view of the judgment of the tribunal as affirmed by this Court, tribunal can order second respondent to forward proforma showing vacancies to KPSC as arisen prior to expiry of the list. With liberty to proceed further as above, the impugned order now passed as against the petitioner is set aside. Sd/- A.MUHAMED MUSTAQUE, JUDGE Sd/- SHOBA ANNAMMA EAPEN, JUDGE PR OP(KAT) NO. 463 OF 2023 ..5.. APPENDIX OF OP(KAT) 463/2023 PETITIONER ANNEXURES Annexure P1 Annexure P2 Annexure P3 Annexure P4 Annexure P5 CERTIFIED COPY OF THE ORDER DATED 17.12.2021 IN O.A.(EKM) NO. 630/2019 OF THIS HON'BLE TRIBUNAL A TRUE COPY OF THE JUDGMENT DATED 17.01.2023 IN O.P(KAT) NO.110/2022 OF THE HON'BLE HIGH COURT A TRUE COPY OF THE ORDER NO. ADFW/2473/23 SE3 DATED 15.06.2023 ISSUED BY THE 2ND RESPONDENT . A TRUE COPY OF THE JUDGMENT DATED 26.06.2023 IN CONTEMPT CASE (C) NO. 1173/2023 OF THE HON'BLE HIGH COURT A TRUE COPY OF THE JUDGEMENT DATED 26.07.2023 IN CONTEMPT CASE (C) NO NO.1629/2023 OF THE HON'BLE HIGH COURT Annexure R1(a) TRUE COPY OF THE PROFORMA DATED 22/07/2023 Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 THE TRUE COPY OF THE PETITION IN CP(EKM) NO. 114/2023 THE TRUE COPY OF THE AFFIDAVIT DATED 5/09/2023 THE TRUE COPY OF THE ADDL. AFFIDAVIT DATED 25/9/2023 THE TRUE COPY OF THE ORDER DATED 25/09/2023 OF THE TRIBUNAL RESPONDENT EXHIBITS Exhibit R1 (A) A true copy of the interim order dated OP(KAT) NO. 463 OF 2023 ..6.. 22/07/2021 in OA(EKM) No. 630/2019 issued by the Kerala Administrative Tribunal. Exhibit R1 (B) A true copy of the Interim order dated 30.05.2022 in OP(KAT)No. 110/2022 of this Hon'ble Court. Exhibit R1 (C) A true copy of the relevant pages of the appointment chart issued by the PSC on 18.09.2021 . Exhibit R1 (D) A True copy of the relevant pages of the appointment chart issued by the PSC on 17.01.2022.