IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 WP(C).No. 9459 of 2008(A) ------------------------- PETITIONER: ------------ SADASIVAN K.M., S/O. SREEDHARAN NAMBISAN 'NADAM' KODAKKAD VALIYAPOIL, P.O. OLAT, KASARAGOD DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENTS: ------------- 1. KERALA PUBLIC COMMISSION, REPRESENTED BY THE SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE DISTRICT OFFICER KERALA PUBLIC COMMISSION, KASARAGOD. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No.9459 of 2008 -------------------------- Dated this the 3rd April, 2008 J U D G M E N T Petitioner is working as a Part time Contingent employee in the Government L.P.School, Kalanad in Kasaragod district. He responded to Exhibit P1 notification for appointment to the post of Driver both heavy and light in different Government departments. Petitioner is qualified for the said post, according to him. He had applied for appointment by transfer for the posts of Driver Gr.II (HDV) and Driver Gr.II (LDV). At the same time, notification was also called for appointment by direct recruitment. Petitioner did not apply in the latter. Though the petitioner was asked to produce the certificates for verification, he was later served with Exhibits P6 and P7 rejection memos on the ground that petitioner's probation has not been declared in the part time post. Therefore, he was ineligible to apply for appointment by transfer. The same has been challenged in the writ petition. W.P ( C) No.9459 of 2008 2 2. An application for amendment as I.A. 4553 of 2008 was later filed by the petitioner for taking up additional contentions. The requirement of an applicant to have completed his probation before applying for appointment by transfer is not mentioned in the notification. Therefore, the same should not have been treated as a ground for rejection of the application. Petitioner seeks a direction to the PSC to consider the candidature of the petitioner for appointment under direct recruitment in these circumstances. 3. I heard Llearned counsel for the petitioner Mr.V.N.Ramesan Nambisan and Sri.Alexander Thomas, learned standing counsel for the PSC. Rejection memos issued by the PSC as Exhibits P6 and P7 are apparently on the basis of Rule 2 (i) (iii) Part I of K.S.& S.S.R, which defines recruitment by transfer. It is in consonance with the decision of this Court in O.P No.4284 of 2002. The challenge against the rejection memos is therefore repelled. 4. Learned counsel for the petitioner submits that requirement that the applicant must have completed his probation, while seeking appointment by transfer is not W.P ( C) No.9459 of 2008 3 mentioned in the notification and therefore, ought not to have been taken note of by the PSC as such. Requirement that an applicant for appointment by transfer must have completed his probation in the post in question is in terms of the General Rules. Obviously, the PSC is bound by the same and the applicant is also bound by the same. It would have been better, if the same was made mention of in the notification as a matter of convenience for the applicants as such. 5. Learned standing counsel for the PSC submits that he will convey this aspect to the PSC for future guidance. But that does not mean that the non mentioning of the said aspect in the notification will keep at bay the application of the rules as such. 6. Counsel for the petitioner submits that PSC is not entitled to deviate from the prescriptions in the notification. He referred to the decision of this Court in Ibrahim Vs.District Medical Officer {1995 (1) KLT 704},Ajayan Vs. State of Kerala{2006 (3) KLT 854} and Public Service Commission Vs. Abdul Rasheed {2007 (3)KLT 881}. The principle is, of course, as laid down by this Court in the above mentioned decisions. But the requirement in the present case deals with W.P ( C) No.9459 of 2008 4 the basic eligibility of the petitioner to apply for appointment by transfer. It is not open to the PSC to dilute the said requirement. Therefore, PSC was bound to consider the application taking note of Rule 2 (13) Part I of K.S. &S. S.R. No question of deviation from the notification arises in the present case as the application by the petitioner is governed by Rules and not merely by the notification. The plea taken in the writ petition for a direction to the PSC to permit the petitioner to apply for appointment by direct recruitment cannot be accepted in the light of the fact that petitioner, admittedly did not respond to the notification for appointment by direct recruitment. For all these reasons, I do not find any merit in this writ petition. Accordingly the writ petition is dismissed. (V.GIRI, JUDGE) ma W.P ( C) No.9459 of 2008 5 W.P ( C) No.9459 of 2008 6 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 ORDER W.P ( C) No.9459 of 2008 7 25th May, 2007 W.P ( C) No.9459 of 2008 8 Common issues are raised for consideration in all these writ petitions. Reference is made to the facts in Writ Petition No.4562/2008 for the sake of convenience.