Devan Ramachandran, J.

1. The Kerala Public Service Commission ('PSC' for short) and its Secretary have filed this appeal, impugning the judgment of a learned Judge of this Court, whereby, they were directed to fill certain vacancies reported to them by the fifth respondent – Kerala Water Authority (KWA), from the rank list earlier published by them to fill up the posts of “Overseer Grade - III”, through the method of 'direct recruitment'.

2. The controversy in this case has its genesis in the Special Rules applicable for filling up of posts in the services of the KWA, namely the Kerala Water Authority Technical Service Rules, 2023 (for short “Special Rules”); and what we are concerned about is that qua the post of “Overseer, Grade III”.

3. To get a hang of the dispute, it is necessary that one reads the method of recruitment for the afore post, for which, the Rule is extracted as under:

                 

                 

4. Admittedly, it is in terms of the Special Rules, that the appellants issued Ext.P1 notification dated 29.12.2018, calling for candidates to fill up 86 vacancies, as also those to arise in future, through direct recruitment; which finally culminated in Ext.P1 rank list dated 21.04.2022, which was to be in force until 20.04.2025.

5. As evident from the afore extracted Rule, the vacancies are to be filled up by direct recruitment and through “by transfer” appointments, in the ratio of 3:1; and consequently, the appellants issued Ext.P5 notification dated 15.12.2023, notifying 24 vacancies to be filled up through “by transfer” method. This led to a rank list dated 21.10.2024, wherein, only 36 candidates were included; and all of them were admittedly advised and appointed, either simultaneously or immediately thereafter, thus exhausting the said list.

6. Edificing their claim on Note 2 of the afore-extracted Rule, the writ petitioners, who are included in Ext.P2 rank list, filed the writ petition seeking, inter alia, that they and others be appointed to the 44 available vacancies of Overseer Grade III, pointing out that such request had been made by the competent Authority  of  the  Kerala  Water  Authority,  as  also  by  the Government of Kerala. They alleged that, though the PSC was obliged to advise candidates from Ext.P2 rank list to the 44 vacancies available after the “in-service candidate rank list” had been exhausted, they were refusing to do so; and, consequently, that they were constrained to approach this Court.

7. While the writ petition was pending, the writ petitioners filed an application, producing therewith a fresh notification issued by the PSC, again calling for candidates to be appointed to the aforesaid 44 vacancies through “by-transfer” mode, marking it as Ext.P11. They asserted that this was untenable because, Note 2 to the afore-extracted Rule prohibited such.

8. The appellants filed counter affidavit, contending, inter alia, that “the direct recruits from open market cannot grab the vacancy earmarked for in-service candidates” (sic); and further that “the procedure followed by Commission is that once vacancies are in proforma specifically for “by transfer”, it has to be notified and selection attempted. If there are no candidates and if the Rule allows, only then it can be converted for Direct Recruitment” (sic).

9. The learned Single Judge assessed the rival contentions and allowed the writ petition, directing the appellants to advise candidates from Ext.P2 rank list; and this has been assailed by them before us.

10. Sri.P.C.Sasidharan – learned standing counsel for the appellants, argued that the ratiocination of the learned Single Judge suffer from error because, the words used in Note 2 of the Rule is “in the absence of qualified persons” and not “availability of qualified persons”. He contended that, when the rank list pursuant to Ext.P5 notification was issued, there were only 36 people included therein, but that it does not mean that there were no other qualified persons; and, therefore, that the PSC issued the next notification dated 30.04.2025 – namely Ext.P11, to confirm if there were other such persons available. He asserted that, when this notification attracted 64 candidates, who have been included in the subsequent rank list; it becomes manifest that there was no absence of qualified persons. He predicated that the impugned judgment is hence in error, particularly because neither Ext.P11 notification, nor the rank list subsequent to it, have been challenged.  He prayed that, therefore, this appeal be allowed.

11. Smt.A.Aruna – appearing for the writ petitioners/ respondents 1 to 3, in refutation, argued that, when the rank list pursuant to the second notification, namely Ext.P5, attracted only 36 candidates, it stood incontrovertible that there were no other qualified persons; because otherwise, all such persons would have also applied. She pointed out that, by the PSC issuing further notifications, it is almost as if it is undertaking an expedition to include more and more people who became qualified later than the exhaustion of the second rank list; and hence, that the learned Single Judge was wholly justified in having issued the directions in the impugned judgment. She concluded, refuting the contentions of the appellants – that the judgment is incorrect since Ext.P11 notification or the rank list pursuant to it has not been challenged - explaining that both of them were issued after the writ petition was filed, when the matter was pending before the learned Single Judge. She reiteratingly asserted that, when, going by the 'Rules', the PSC could not have issued Ext.P11 notification, it would not be available for them to take the aforesaid contention, because every action of theirs, starting from it stands inept in law.

12. Sri.Justine Jacob – learned standing counsel for the KWA, adopted the submissions of Smt.A.Aruna; adding that her client had requested the PSC to fill up the available vacancies through the candidates included in Ext.P1 rank list, subsequent to the exhaustion of Ext.P5 rank list; and referred to Exts.P6, P8 and P10 in substantiation. He prayed that, therefore, this appeal be dismissed.

13. As indicated above, the sole point in dispute in this case, is hinged in the manner in which Note 2 of the Rule in question is to be interpreted.

14. Sri.P.C.Sasidharan asserts that it is only in the absence of qualified persons, can the direct recruit candidates included in the rank list be considered for the available vacancies. His specific contention is that, merely because there were only 36 people included in the rank list pursuant to Ext.P5 notification, it cannot be assumed that there were no other qualified persons.

15. There is a problem that the appellants will face in the afore argument because, one cannot presume the contrary also, without cogent and reliable inputs. To say that 36 people alone  were  included  in  the  rank  list  pursuant  to  Ext.P5 notification, even though there were other qualified persons, would be to apply surmises and conjectures. There is no information before us that there were other qualified persons eligible for appointment on the date when the rank list pursuant to Ext.P5 notification was exhausted; and this is vitally relevant because, Note 2 would otherwise certainly come into play.

16. The distinction sought to be drawn by Sri.P.C.Sasidharan, between the absence of qualified persons and availability of qualified persons, may apply only in the case where there is clear information available that, even though there were qualified persons, they were unable to apply, or to be included in the rank list published pursuant to Ext.P5. In the conceded absence of any such, certainly, as we have said above, an assumption to the contrary would only be speculative.

17. Pertinently, both the KWA and the Government of Kerala have understood the sweep of Note 2 of the afore-extracted Rule to mean that the PSC must advise candidates to the available 44 vacancies subsequent to the exhaustion of the “in-service” candidates rank list - prepared pursuant to Ext.P5 - which is ineluctable from the fact that Exts.P6, P8 and P10 have been issued by the former; while, the Chief Secretary of the latter sought the same through Exts.P7 and P9, the second of which was addressed to the PSC itself. In fact, in Ext.P7, the Additional Chief Secretary to the Government of Kerala directed the KWA to report all available vacancies to the PSC, to thus enable it to advise candidates from Ext.P2 list.

18. Before we close, we must also address the adscititious argument of Sri.P.C.Sasidharan, that the declarations in the judgment of another learned Division Bench of this Court in Kerala Public Service Commission v. Dr.Sagar & others [OP(KAT) No.155/2024], would apply in favour of his clients.

19. We have examined the said judgment, a copy of which has been handed over across the Bar by Sri.P.C.Sasidharan; and find that the declarations therein are available in paragraph 3 of it, which are extracted as under:

                  “We find the argument is formidable as PSC will have to follow definite procedure to find out whether there exist qualified candidates among by-transfer category or not, as the selection for both the categories of by-transfer and direct recruitment will have to be done by PSC. If PSC issues notifications inviting applications for the category of by-transfer, it will be in a position to decide the number of vacancies which can be filled up by direct recruitment in the absence of qualified candidates among by-transfer appointments and, this has to be done by PSC itself. This cannot be done by the Tribunal  based  on  the  statement  filed  by  the Government. However, we find that the fact remains that there exist 18 vacancies and there are no qualified candidates from among the by-transfer category. Thus, while we disapprove the approach in determining unfilled vacancies, we are not proposing to interfere with this matter as there is no manifest injustice requiring interference by this Court under Article 227 off he Constitution. Thus, we dismiss this original  petition  with  the  above  observations.”

20. We are in full affirmation with the views of the learned Division Bench because, it restates something very obvious and apodictic. Going by the judgment, the learned Bench has approved the stand of the PSC that, it is only after it convinces itself that there are no qualified persons eligible for being appointed by transfer, can the method of direct recruitment be resorted to.

21. In this case, the appellants did the afore, by issuing Ext.P5 notification and preparing a rank list subsequent to it on 21.10.2024. It is crucial that the first rank list, including those persons eligible for appointment under the “direct recruitment quota”, was published on 21.04.2022; while, Ext.P5 notification was issued more than a year and a half later on 15.12.2023, to culminate in a rank list dated 21.10.2024. It justifies a legitimate assumption – in the absence of any input to the contrary - that every eligible and qualified candidate would have applied under that notification; and it is conceded is that only 36 were included. It is reiterated by Smt.A.Aruna, relying upon Ext.P8, that there were 44 more vacancies at the time when the rank list pursuant to Ext.P5 was exhausted. This, of course, is a matter of fact, into which we do not intend to delve or speak affirmatively because, it is to be left to the Authorities to deal with.

22. As matters stand, there is no doubt that there were some vacancies after the rank list pursuant to Ext.P5 had been exhausted and there cannot be any presumption that there were other qualified persons at that time, without any corroborative or substantiating input to such effect.

23. If we are to allow the PSC to continue to make notifications one after the other, in order to verify for themselves that there are no qualified persons, the purpose of Note 2 of the Rule would be wholly eroded, since more candidates would get qualified as time passes. This is not the requirement of the Note or the Rule; and hence we find that the learned single Judge has acted within jurisdiction and without error.

                  Consequently, this appeal is dismissed.

                  Since we are disposing of this writ appeal only today,

                  we deem it necessary that the appellants be given some time to comply with the directions. We, resultantly, give them a period of two months from today for such purpose.