1. The above writ petition is filed challenging Ext.P11 appointment order of the 6th respondent and for a declaration that promotion of the 6th respondent in a vacancy arisen due to the resignation of the directly recruited candidate, advised by the Kerala Public Service Commission, during the currency of the Ext.P2 ranked list, without reporting the vacancy to the Kerala Public Service Commission, is illegal, arbitrary and violative of the fundamental rights guaranteed to the petitioner under Article 14 and Article 16 of the Constitution of India.

2. Petitioner is an aspirant to the post of Labour Welfare Officer in the 1st respondent company. The Kerala Public Service Commission published Ext.P1 notification to the said post as Category No.318/2019. As per Ext-P1, the method of appointment is direct recruitment and the number of vacancies earmarked is ‘one’. The petitioner applied for the post, and he was included in Ext.P2 ranked list. The petitioner would submit that Note(1) of Ext.P2 stipulates that the ranked list will be in force till the publication of a new ranked list after the expiry of a minimum period of one year or till the expiry of three years, whichever is earlier. Pursuant to the publication of Ext.P2 ranked list, the 1st rank holder, Aneesh Kumar.K, who belongs to the OBC community, was appointed, as evident from Ext.P3 appointment chart. Petitioner is the next candidate eligible for appointment from Ext.P2 ranked list, if one more vacancy arises in the 1st respondent company. The petitioner submits that later, Aneesh Kumar.K. resigned from service and in his place the 6th respondent was appointed in the service quota from the feeder category. The petitioner submits that when a vacancy, which is notified for appointment through direct recruitment, falls vacant due to resignation of the appointee, the said vacancy ought to have been reported by the 1st respondent company to the Public Service Commission for appointment under the direct recruitment. The petitioner would submit that the promotion granted to the 6th respondent was during the currency of the ranked list and he was appointed in a vacancy reported to the Public Service Commission during the pendency of the list. The petitioner, relying on Note(1) of Ext.P2 ranked list, submits that it is specifically mandated therein that the candidates will be advised for appointment in accordance with the rules and orders regarding reservation and rotation as amended from time to time, if applicable, against vacancies reported to the Commission during the pendency of the list. The learned counsel for the petitioner, relying on Rule 2A of Kerala Public Service Commission (Consultation by Corporations & Companies) Rules, 1971 (hereinafter referred to as ‘the Rules, 1971’) submits that no appointment to the posts brought under the purview of the Public Service Commission shall be made, except on the advice of the Commission. Based on the same, the petitioner would contend that the post notified as per Ext.P1, after the resignation of Aneesh Kumar.K., ought to have been notified to the Public Service Commission for direct recruitment since the said post became vacant during the currency of Ext.P2 ranked list. Yet another contention raised by the petitioner is that Ext.P8 Recruitment Rules of the 1st respondent company cannot override the provisions of Rule 2A of the Rules, 1971. It is aggrieved by the same that the present writ petition has been filed challenging Ext.P11 order, whereby appointment was made to the post of Labour Welfare Officer, by promoting the 6th respondent from the feeder category.  In support of his contention, the petitioner relies on the judgment in R.S. Mittal v. Union of India [1995 KHC 1084], Unnikrishnan Nair G.S. v. State of Kerala and Others [2019 (2) KHC 24], Sijo Thomas v. State of Kerala [2024 (4) KHC 397], Velayudhan v. Secretary to Government [1985 KHC 177], State of Kerala v. C.Kunhikkamma [2024 (3) KHC 24], Jyothish Kumar v. State of Kerala [1996 KHC 336], Sebastian P Joseph v. KSRTC, [1998 KHC 465], Murali T.G. v. Vettom Grama Panchyath [2023 (4) KHC 330], Girija v. Director of Industries [2001 KHC 438] and Annie v. Commissioner, Chalakady Municipality and Others [1984 KHC 115].

3. A detailed counter affidavit has been filed by the 4th respondent Public Service Commission, wherein it is stated that one vacancy in the post of Labour Welfare Officer was reported to the Commission on 15.03.2018, based on which notification was issued and the vacancy was filled up on 07.08.2023 and no further vacancy has been reported from the 1st respondent company and that the ranked list is still in force. It is further stated that candidates are being advised against all the substantive vacancies reported within the validity period of the ranked list and the petitioner was not advised since her turn did not arise with respect to the vacancies reported and further that inclusion in the ranked list does not give any indefeasible right for appointment to the petitioner as held by the Apex Court in S.S.Balu and another v. State of Kerala and Others [(2009) 2 SCC 479] and of this Court in Bindhu v. State of Kerala [(2012) 2 KLT 604].

4. A detailed counter affidavit has been filed by respondents 1 to 3, wherein it is stated that the appointment to the post of Labour Welfare Officer is done by granting promotion from the feeder category and, only in the absence of a qualified hand for promotion, by direct recruitment through the Kerala Public Service Commission. As there was no eligible candidate in the feeder category to be considered for promotion, the vacancy in the post of Labour Welfare Officer in Grade V of the managerial cadre had to be filled up by direct recruitment (General), and it was notified to the Kerala Public Service Commission. Pursuant to the same, the Public Service Commission conducted the selection process and published Ext.P2 ranked list from which the 1st rank holder Sri.Aneesh Kumar K. was appointed to the post of Labour Welfare Officer. Later, Sri.Aneesh Kumar resigned from the post, with effect from 22.08.2024, and thus another vacancy arose in the post of Labour Welfare Officer and going by the Recruitment Promotion Policy, the respondent company is bound to ascertain whether any eligible candidate is available in the feeder category and only if no such candidate is available, the 1st respondent company is liable to report the vacancy to the Public Service Commission. It is also stated that, as on the date of arising of the vacancy due to the resignation of Sri.Aneesh Kumar K., the 6th respondent, who was working as a Selection Grade Welfare Assistant, became eligible and qualified to be promoted as Labour Welfare Officer. Therefore, the 1st respondent was bound to promote the said employee as Labour Welfare Officer as per the Rules of the Recruitment and Promotion Policy for Managerial Cadre of the company. In the light of the above, respondents 1 to 3 submit that the petitioner has absolutely no sustainable claim over the vacancy that arose, owing to the resignation of Sri.Aneesh Kumar K., and they sought for dismissal of the writ petition. In support of his contention, learned counsel relies on the judgment of the Punjab and Haryana High Court in Gagan Sachdeva v. Indian Council of Agricultural Research and Others[MANU/PH/0550/2015]

5. A detailed reply has been filed by the petitioner to the counter affidavit filed by respondents 1 to 3, reiterating the stand taken in the writ petition and also disputing the lack of qualification on the 6th respondent, stating that it is not known whether the 6th respondent is having a qualification of MSW (Personnel Management & Industrial Relations) alleged to have been acquired by the 6th respondent.

6. I have heard the rival contentions on both sides.

7. Going by the Recruitment Rules produced as Ext.P8, the method of appointment to the post of Labour Welfare Officer is promotion from the feeder category and only in the absence of qualified hands for promotion, it is by direct recruitment through the Kerala Public Service Commission. Admittedly, when a vacancy of Labour Welfare Officer arose in the company, there was no one eligible to be promoted from the feeder category to the said post. Consequently, as provided in the Recruitment Rules, the vacancy was reported to the Kerala Public Service Commission for direct recruitment. A selection process was conducted, and the 1st rank holder in the ranked list was appointed to the post of Labour Welfare Officer. He joined the service, but later resigned with effect from 22.08.2024. Thereupon another vacancy arose in the post of Labour Welfare Officer. At the relevant time, the 6th respondent, being a qualified employee in the feeder category, was eligible for promotion to the said post. Accordingly, in terms of the Recruitment Rules, the 6th respondent was promoted as Labour Welfare Officer. The question to be considered is whether, when a vacancy notified for direct recruitment through the Public Service Commission has been filled by a direct recruitee and such direct recruitee resigns from service during the currency of the ranked list, whether the resultant vacancy is to be filled by advising a candidate from the same ranked list or by promoting a person from the feeder category, who is qualified as on the date of occurrence of the said vacancy. Ext. P8 is the relevant extract of the Recruitment Rules of the Company in which the method of recruitment to the post of Labour Welfare Officer Grade V is provided, which reads as follows:

                  “53.Grade V Labour Welfare Officer -

                  a) Promotion from SG Senior Clerk/SG Senior Assistant/SG Senior Steno/SG Senior Typist/SG Welfare Assistant

                  PG Degree in Sociology or Social work of a University recognised by Govt. of Kerala.

                  (b) In the absence of qualified hands for promotion, Direct Recruitment though PSC.

                  1. PG Degree in Sociology or social work of a University recognised by Govt. of Kerala

                  2. Adequate knowledge in Malayalam.”

                  When one vacancy of Labour Welfare Officer occurred in the 1st respondent company, and since there were no qualified hands in the feeder category for appointment to the post, the company as provided in Ext.P8 Recruitment Rules reported the vacancy to the Public Service Commission and the Commission conducted a selection process and advised the 1st rank holder, and was appointed by the company to the post of Labour Welfare Officer. Later, when he resigned from the said post, the resultant vacancy which arose on 22.08.2024 due to resignation can only be treated as a fresh vacancy. On the said date, one of the employees, the 6th respondent, from the feeder category became qualified for promotion to the post of Labour Welfare Officer, and he was appointed to the said post. I am of the view that, the said appointment of the 6th respondent is strictly in consonance with the Ext.P8 Recruitment Rules, which provides that when a vacancy to the post of Labour Welfare Officer arises in the company, it should be filled up by granting promotion from the feeder category, and only if no eligible candidate is available in the feeder category, that the said post could be reported to the Kerala Public Service Commission for direct recruitment. Rule 2A of the Rules, 1971 is not violated as contended by the counsel for the petitioner in as much as it only says no appointment to posts brought under the purview of the Public Service Commission shall be made, except on the advice of the Commission. The vacancy which occurred on 22.08.2024 due to the resignation can only be a new vacancy which need not be reported to the Public Service Commission since as per Ext.P8 Recruitment Rules, any vacancy to the post of Labour Welfare Officer has to be filled up by qualified hands in the feeder category and since the 6th respondent was fully qualified as on that day, he was appointed to the said post. A similar issue was considered by the Apex Court in Sudesh Kumar Goyal v. State of Haryana and Others.[2023 (10) SCC 54] Paragraph 18 of the said judgment reads as follows:

                  “8. This takes us to the second argument that the appellant could have been easily adjusted against the vacancy caused due to resignation of one of the selected candidates. The argument per se is bereft of merit inasmuch as all the vacancies notified stood filled up initially. However, if one of the selected candidates joins and then resigns, it gives rise to a fresh vacancy which could not have been filled up without issuing a proper advertisement and following the fresh selection process. The Division Bench has rightly dealt with the above contention in the light of the precedent of the various decisions of this Court and we do not feel that any error has been committed in this context.”

                  Apex Court in the said judgment held that the contention of the appellant therein that he could be easily adjusted against the vacancy caused due to resignation of a selected candidate cannot be accepted at all since if one selected candidate joins and then resigns, it gives rise to a fresh vacancy which could not be filled up without undergoing a fresh selection process. In the present case also, the vacancy which arose on 22.08.2024 due to resignation can only be treated as a fresh vacancy, to which appointment was made by granting promotion to the 6th respondent in accordance with Ext.P8 Recruitment Rules. In the light of the above, the promotion granted to the 6th respondent as per Ext.P11 is not liable to be interfered with.

8. Another contention raised by the learned counsel for the petitioner is that Rules, 1971 shall prevail over Ext.P8 Recruitment Rules. I do not find any apparent conflict between the Rules, 1971 and Ext.P8 Recruitment Rules. Even going by the Kerala Public Service Commission (Additional Functions as Respects Certain Corporations and Companies) Act, 1970(hereinafter referred to as ‘the Act, 1970’), the 1st respondent Corporation is bound to consult the Public Service Commission on all matters relating to the methods of recruitment of Officers and other employees of that Corporation and also on the principle to be followed in making appointments by direct recruitment of the officers and other employees of that Corporation and on the suitability of candidates for such appointments. It is further provided in Section 3 of the Act, 1970 that the Board of Directors of the company may consult the Public Service Commission on all matters regarding the method of recruitment of the employees of the Government Company and also on the principle to be followed in making appointments through direct recruitment of the employees of the Government Company and the suitability of the candidate for such appointments. Going by Section 3 (3) of the Act, 1970, it is the duty of the Public Service Commission to advise the Corporation or the Board of Directors of the Company, as the case may be, on such matters. So, naturally, Ext.P8 Recruitment Rules of the Company are framed only after consultation with the Public Service Commission. Therefore, the above contention of the petitioner is also liable to be rejected.

9. I have gone through the judgments referred to by the petitioner in support of his contention, and I find that none of the judgments is applicable in the facts and circumstances of the present case. Further, as contended by the learned counsel appearing for the 4th respondent, the petitioner does not have any indefeasible right for appointment due to his inclusion in the rank list.

In the light of the above discussion, I find no reason to grant any of the reliefs sought for in the writ petition, and the writ petition is accordingly dismissed.