Non Joining Duty (NJD) Vacancy Can't Be Filled From Expired PSC Rank List If It's Reported After List Expiry : SC [Read Judgment]

The Supreme Court has held that Public Service Commission cannot advise any candidate to a Non-Joining Duty (NJD) vacancy from an expired rank list, if such vacancy was reported after the expiry of the rank list.

Holding thus in the case Aneesh Kumar vs State of Kerala and others, a bench comprising Justices A M Khanwilkar and Dinesh Maheshwari upheld the decision of a Full Bench of the High Court of Kerala.

The appellants before the SC sought appointment against 93 NJD vacancies reported to the Kerala Public Service Commission (for short, "the KPSC") on July 12, 2016 relating to the post of Sub Inspector of Police (Trainee). They were included in the rank list published on September 11, 2013. The PSC rejected their demand on the ground the list of 2013 had expired before the stated vacancies came to be reported.

Challenging the rejection by PSC, they moved the Kerala Administrative Tribunal. They pointed out that that the list published in 2013 had got embroiled in a litigation with respect to reduction of cut-off marks for reserved categories, and the same attained finality only In October 2015, when the SC disposed of the SLPs. Therefore, the case advanced by the appellants, in essence, was that the appointments were not effected from the list due to the interim orders of the court, and hence they should not be put to prejudice because of those acts of the courts.

The KAT dismissed the applications, and said that the NJD vacancies will have to be reported from the second rank list published in 2015.

Reference to larger bench by HC

Challenging the KAT order, the parties approached the High Court. The Division Bench observed that the first Ranked List 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 same after 13.10.2015 in accordance with the respective Rules. Thus, it held that the list expired only on July 19, 2016.

It concluded by observing that the 93 NJD vacancies reported on July 12, 2016,  should be filled up by the candidates empanelled in the first list.

However, the DB noted that a 1977 decision by a coordinate bench in the case Kerala Public Service Commission vs. Dr. Kesavankutty Nair & Ors had held that the maxim "actus curiae neminem gravabit" (act of court shall prejudice none) was held to be not applicable to decide the life of a Ranked List.

Doubting this dictum, the DB referred the case to a Full Bench.

Full Bench decision

A 3-judge bench comprising Justices P R Ramachandra Menon, Devan Ramachandran and N Anil Kumar answered the reference in the case Unnikrishnan Nair vs State of Kerala and others, holding that the appellants were not entitled to be advised against the NJD vacancies.

The Full Bench disagreed with the preliminary observations of the DB, and said that the principle ""actus curiae neminem gravabit" was not attracted to the case, as the interim orders of the courts in the previous litigation did not interdict the reporting of the vacancies in any manner. The interim orders were mere "status quo" orders with respect to those who had taken appointment as per the first list during the period of earlier litigation.

The FB also observed that no candidate can claim a legally enforceable right to be appointed to a particular post merely on the strength of his/her inclusion in the rank list published by the Public Service Commission.

Based on Rules 13 and 14 of the Kerala Public Service Commission Rules of Procedure, 1976, the FB also concluded that the first list had expired before the reporting of the NJD vacancies.

SC conclusion

Agreeing with the view taken by the FB , the SC observed :

"it is well established that the Commission (KPSC) cannot advise any candidate after the expiry of a Ranked List, even to an NJD vacancy, if such vacancies are reported after the expiry of the list in question. We agree with this opinion of the Full Bench".

The NJD vacancies reported after the expiry of the first list must be filled up from the subsequent lists, ordered the Court.

"Considering the indisputable facts and unexceptionable finding recorded by the Full Bench which commends to us, it must follow that the appellants were not entitled to base their claim in reference to the first Ranked List (RL­I), 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 (RL­I), 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", the bench said in conclusion.

Case Details
Title : Aneesh Kumar VS and others vs State of Kerala and others
Case No : Civil Appeal No 2368/2020
Coram : Justices A M Khanwilkar and Dinesh Maheshwari

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