IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 WP(C).No. 5822 of 2008(R) -------------------------------------- PETITIONER: ------------------- DR.THUSHANTH THOMAS,AN 38,TC 2/2169 (1), 'CHIRAYIL PARAMBIL',ADARSH NAGAR, PATTOM P.O., THIRUVANANTHAPURAM-4, REP. BY HIS POWER OF ATTORNEY HOLDER, C.O.THOMAS, S/O.LATE K.O.OOMMEN, CHIRAYIL PARAMBIL, T.C.2/2169(1)AN 38, ADARSH NAGAR, PATTOM, THIRUVANANTHAPURAM. BY ADV. MR.R.RAMADAS. RESPONDENTS: ------------------------ 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE K.P.S.C., PATTOM, THIRUVANANTHAPURAM. 2. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, OFFICE OF THE K.P.S.C., PATTOM, THIRUVANANTHAPURAM. R1 & R2 BY MR.ALEXANDER THOMAS, SC,KPSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5822/2008-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE GAZETTE NOTIFICATION DTD. 14/11/2005 ISSUED BY THE R.1. EXT.P.2: COPY OF THE PRESCRIBED APPLICATION FORM ISSUED BY THE R.1. EXT.P.3: COPY OF THE ORDER DTD. 17/01/2007. EXT.P.4: COPY OF THE ADMISSION TICKET FROM THE R.1. TO THE PETITIONER. EXT.P.5: COPY OF THE NOTIFICATION DTD. 13/11/2007. EXT.P.6: COPY OF THE COMMUNICATION DTD. 19/03/2007 FROM THE R.1. EXT.P.7: COPY OF THE REPLY DTD. 21/03/2004 BEFORE THE R.2. EXT.P.8: COPY OF THE COMMUNICATION DTD. 31/01/2008 FROM THE R.2. EXT.P.9: COPY OF THE MEMO DTD. 24/05/2008 RECEIVED BY THE PETITIONER FROM THE KERALA PUBLIC SERVICE COMMISSION. EXT.P.10: COPY OF THE RANK LIST PUBLISHED BY THE R.1. FOR THE POST OF SENIOR LECTURER IN MEDICINE. EXT.P.11: COPY OF THE ORDER NO. EA 3-47075/2004/DHS DTD. 15/01/2005. EXT.P.12: COPY OF THE ORDER NO. EA 3-47075/04/DHS DTD. 16/03/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R.RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.5822/2008-R ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 25th day of June, 2009 J U D G M E N T The petitioner was an applicant to the post of Senior Lecturer in Medical Education which was notified as per Ext.P1. He had been working as Assistant Surgeon in the Health Service, Government of Kerala from 26/03/2005. The application to the post of Senior Lecturer was submitted in the prescribed form, Ext.P2. Meanwhile, he resigned from Kerala Health Services with effect from 02/01/2007 and that was duly accepted by the Director of Health Services as per Ext.P3 order dated 17/01/2007. Ext.P4 is the admission ticket issued to him to appear for the written test conducted on 21/07/2007. Even though he was working as Senior Resident on ad hoc basis at the A.I.I.M.S, New Delhi, he appeared for the written test. In the short list of candidates who are found provisionally eligible for interview, he has been included, which is evidenced by Ext.P5 and his register number is 255. 2. By Ext.P6 dated 19/03/2007, the petitioner was directed to produce documents to prove educational qualification, as well as no objection certificate in the prescribed form from the Central/State W.P.(C). No.5822/2008 -:2:- Government. The last date to submit the documents was 30/03/2007. By Ext.P7, he replied that he has already resigned from service, and is working as Senior Resident at the AIIMS, New Delhi on ad hoc basis. A copy of Ext.P3 was also enclosed. By Ext.P8 he was informed that his application has been rejected for want of production of the no objection certificate. It was also informed that the candidates who are in Government service have to obtain a receipt from the Head of Office on the date of application and produce the same as and when directed by the Commission. It is at that stage the petitioner approached this Court by filing this writ petition. 3. By interim order dated 19/02/2008, this Court directed that the petitioner shall be allowed to participate in the interview provisionally subject to the result of the writ petition. Accordingly, the petitioner participated in the interview. Ext.P9 is the true copy of the memo received by the petitioner in this regard. Ext.P10 is the ranked list published by the P.S.C. In Note-I it is stated that the results of the candidates with serial Nos.26, 9 and 15 are withheld. The petitioner is serial No.26. 4. The Commission has filed a counter affidavit stating that as per Rule 2(a) of the Kerala Government Servants' Application for the posts (Private Employment and Government Service) Rules, 1958, such a person W.P.(C). No.5822/2008 -:3:- who has applied without the consent of his Head of Office/Department shall not be eligible for appointment to any post under the Government of Kerala. It is stated that they can present their application to the K.P.S.C after obtaining a receipt from the Head of Office/Department. The said provision is incorporated in paragraph (20) of the general conditions appended to the Gazette Notification. It is further pointed out that against column 12 of his application, the petitioner has noted that he was working as Assistant Surgeon in Health Services (Kerala) since 26/03/2005. Therefore, it is contended that he was admitted provisionally for the written test on condition to obtain N.O.C “receipt” or N.O.C at the next stage of selection. If he had disclosed at any stage about the temporary nature of his appointment as now claimed, the Commission would not have insisted an N.O.C. 5. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the Commission. Relying upon Ext.P11 order of appointment, it is contended by the learned counsel for the petitioner that the appointment of the petitioner to the post of Assistant Surgeon in the Health Services Department was on temporary basis under Rule 9(a)(i) of Kerala State and Subordinate Service Rules, 1958. Inviting W.P.(C). No.5822/2008 -:4:- my attention to the application form Ext.P2, it is submitted that therein also it has been specified that candidates need not enclose copies of any document/certificate in proof of their claims. Apart from the same, it is contended that he had resigned from service, which was accepted as per Ext.P3, and which is effective from 02/01/2007. Therefore, as on the date of issuance of Ext.P6 dated 19/03/2007, he has ceased to be in service and hence, the requirement to produce the no objection certificate, could not be complied with. It is therefore, submitted that as far as the petitioner is concerned, it was impossible to produce the no objection certificate as per memo dated 19/03/2007, within the time allowed therein. It is further submitted that other applicants who are continuing in the Health Department, who have not obtained the certificate or N.O.C from the Head of Office as on the date of submission of application, have obtained the same on receipt of Ext.P6 communication and produced the same before the first respondent. It is stated that the first respondent had accepted such certificates or N.O.C's submitted by other applicants who are still continuing in the Government service. It is therefore, contended that as far as the petitioner is concerned, he is unable to produce a certificate or N.O.C from the Head of Office, as he has already resigned from the Government W.P.(C). No.5822/2008 -:5:- Service even before the receipt of Ext.P6 communication. 6. It is evident from the proceedings Ext.P3 that the petitioner's resignation was duly accepted. The requirement to produce the N.O.C or receipt was made known to him as per Ext.P6 notice. It is clear from the application form that the applicant was not required to produce any other documents at the time of submitting the application. Therefore, as far as the case of the petitioner is concerned, the requirement to produce N.O.C as on the date of Ext.P6 has become an impossibility. But going by the contents of Ext.P8, this aspect has not been considered by the P.S.C. His application stands now rejected stating that he has not produced the N.O.C. Therefore, the matter requires a reconsideration. The fact that other applicants have also submitted the application without producing the N.O.C along with the application and have produced them only after Ext.P6 notice was issued to them shall also be considered. Clearly, it is a case where the petitioner's contention, that there is an impossibility or difficulty for him to produce these certificates, requires a deep consideration. Since he is not in the service as Assistant Surgeon, there is no purpose in asking him to produce a no objection certificate from the former employer. Insistence on the same will be meaningless also. W.P.(C). No.5822/2008 -:6:- 7. In that view of the matter, Ext.P8 is set aside and the respondents will consider this matter afresh and then pass appropriate orders after considering the contentions of the petitioner in detail and in accordance with the findings and observations made above within a period of four weeks from the date of receipt of a copy of this judgment. Depending upon the said order, the Commission will consider the petitioner for advice in any suitable vacancy without disturbing the candidates already advised if any and in accordance with his ranking. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms