IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 WA.No. 1085 of 2009() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN OP.17161/2000 .................... APPELLANT(S): PETITIONER ------------------------ DR.DINESHAN KUNIMAL MATTENCHERRY, VAISHNAVA, KUTHIRAVATTOM P.O., CALICUT. BY ADVS.MR.S.ANANTHAKRISHNAN MR.SHYAM PADMAN RESPONDENT(S): RESPONDENTS -------------------------- 1. GOVERNMENT OF KERALA, REP.BY SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, TRIVANDRUM. 2. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, TRIVANDRUM. 3. DIRECTOR OF MEDICAL EDUCATION, TRIVANDRUM-11. 4. DR.VENUGOPALAN A.V., SENIOR LECTURER IN GENITO URINARY SURGERY, MEDICAL COLLEGE, CALICUT. 5. DR.C.M.HARIS, SENIOR LECTURER IN GENITO URINARY SURGERY, MEDICAL COLLEGE, TRIVANDRUM. 6. DR.P.HARIGOVINDAN, SENIOR LECTURER IN GENITO URINARY SURGERY, MEDICAL COLLEGE, CALICUT. 7. DR.M.R.CHANDRASEKHRAN NAIR, SENIOR LECTURER IN GENITO URINARY SURGERY, MEDICAL COLLEGE, TRIVANDRUM. R1 & R3 BY GOVT. PLEADER MR.BENNY GERVASIS R2 BY ADV. MR.ALEXANDER THOMAS, SC, PSC R4 BY ADVS. MR.P.V.KUNHIKRISHNAN R6 BY MR.JACOB ABRAHAM THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss “CR” K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A. No.1085 of 2009 ------------------------------ Dated this, the 2nd day of February, 2010 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant was the writ petitioner. The respondents herein were the respondents in the Writ Petition. This appeal throws up a legal conundrum as to whether a person appointed after three years from the date of advice by the Public Service Commission (for short 'PSC'), for the reason that he was facing disciplinary proceedings, could claim seniority with effect from the date of advice, as provided under Rule 27(c) of the Kerala State and Subordinate Services Rules (for short 'KS&SSR'). 2. The brief facts of the case are the following: The appellant was working as a Lecturer in Surgery in the Medical College, Kozhikode. He applied for leave without allowance from 26.7.1994 to 21.11.1994. Later, he applied W.A. No.1085/2009 - 2 - for leave without allowance for 119 days from 23.11.1994. But, the leave was not granted. According to the appellant, he resigned from service on 2.11.1994 which was to take effect from 23.11.1994. Later, he sent a reminder on 26.10.1995, requesting to accept his resignation letter. But, according to the respondents, they did not receive any resignation letter and the appellant remained unauthorisedly absent after submitting the leave application for 119 days' leave from 23.11.1994. The appellant was called upon to rejoin duty by a registered letter. But, the communication was returned unclaimed. So, he was treated as unauthorisedly absent from 23.11.1994 and disciplinary proceedings were initiated against him. The Director of Medical Education issued to him a memo of charges accompanied by a statement of allegations. They were also returned unserved. So, the Director of Medical Education published the memo of charges in two leading Malayalam dailies. Even thereafter, no written statement was received from him. So, the Government ordered to conduct an enquiry under Rule 15 of the Kerala Civil Services (Classification Control and Appeal) Rules, 1960. Dr.Umadathan, the enquiry officer, held the enquiry. The W.A. No.1085/2009 - 3 - appellant did not turn up to face the enquiry. But, he sent a representation on 19.1.1996, expressing his willingness to quit the service and also tendered resignation. The Government did not accept his resignation, as the disciplinary proceedings were pending against him. Based on the enquiry report, the appellant was served with Ext.P6 notice dated 28.3.1996, directing him to show cause why he should not be removed from service. The appellant did not respond. Thereafter, in consultation with the PSC, the Government passed Ext.P3 order dated 27.12.1999, removing him from service with effect from 23.11.1994. 3. In the meantime, the appellant was advised for appointment by the PSC on 3.2.1997, to the post of Lecturer in Genito-Urinary Surgery in the Medical Education Department. Because of the pendency of the disciplinary proceedings against him, he was not appointed. Later, after the culmination of the proceedings as per the final order Ext.P3, he was appointed by order dated 25.10.2000 and he joined duty. The persons, who were advised and appointed after 1999, to the post of Lecturer in Genito-Urinary Surgery, W.A. No.1085/2009 - 4 - completed their period of probation and three of them were promoted to the post of Assistant Professor. The same is evident from Ext.P8 list published by the Departmental Promotion Committee (for short 'DPC'). The present Writ Petition was filed by him on 29.6.2000, claiming appointment on the basis of advice of the PSC. During the pendency of the Writ Petition, as mentioned earlier, he was appointed on 25.10.2000. Later, the Writ Petition was amended, challenging Ext.P8 DPC list and also claiming promotion in preference to the persons included in the said list. The PSC filed a counter affidavit. The contesting party respondents also filed counter affidavits. The learned Single Judge, after hearing both sides, dismissed the Writ Petition. The learned Judge took the view that till the date of Ext.P3, the appellant was in service as Lecturer in Surgery. Only after removal from service, he could have been considered for appointment. As a Government servant, he cannot simultaneously hold two posts. In that view of the matter, the Writ Petition was dismissed. Challenging the said decision of the learned Single Judge, this Writ Appeal is preferred. W.A. No.1085/2009 - 5 - 4. The learned counsel for the appellant, Sri.Anantha Krishnan submitted that though the appellant was removed from service only on 27.12.1999, the same had retrospective effect from 23.11.1994. So, even if, he could have been appointed only after 27.12.1999, it can have retrospective effect from the date of advice. So, the learned counsel prayed for allowing the appeal. 5. We heard the learned senior Government Pleader, Sri.Benny Gervasis for respondents 1 to 3, Sri.Kunhikrishnan, learned counsel for the 4th respondent and Sri. Jacob Abraham, learned counsel for the 6th respondent. We considered the rival submissions made at the Bar and also perused the materials on record. The claim of the appellant is founded upon Rule 27(c) of Part-II of the KS&SSR. The said sub-rule along with its 1st proviso reads as follows: “(c) Notwithstanding anything contained in clauses (a) and (b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date W.A. No.1085/2009 - 6 - of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. Provided that the seniority of candidates who have been granted extension of time to join duty beyond three months from the date of the appointment order, except those who are undergoing courses of study or training which are prescribed as essential qualification for the post to which they are advised for appointment, shall be determined by the date of their joining duty.” 6. The above rule contemplates the advice of a candidate from the rank-list by the PSC, appointment of him by the appointing authority within a reasonable time limit and the candidate joining duty at least within three months from the date of receipt of the appointment order. If extension of time is sought beyond three months, the seniority of the candidate in the appointed post will be reckoned only from the date of joining. In the case of candidates who join in time, the seniority shall be reckoned with reference to the W.A. No.1085/2009 - 7 - date of effective advice. Effective advice means, an advice which consummated into an appointment and the candidate joining duty thereafter. In some cases, even after the advice to a post, appointment may not take place, for the reason that the vacancy might have terminated in the meantime. In that event, the candidate will approach the PSC, re-register himself with it and get advised to the next vacancy. In that event, if he is able to join duty, the 2nd advice alone will be treated as effective advice for the purpose of Sub-Rule (c) of Rule 27. But, whether the said proviso could be applied in the case of the appellant, is the crucial question that is to be resolved. 7. In this case, because of the commissions and omissions of the appellant, the appointing authority could not have appointed him within a reasonable time limit of receipt of the advice from the PSC. Though the appellant may plead he is not responsible for the delay, that plea is no longer available to him, in view of the finality of disciplinary proceedings as per Ext.P3. By Ext.P3, he has been found guilty of a misconduct and has been removed from service. W.A. No.1085/2009 - 8 - Till such time, he continued to be a member of the service facing disciplinary action and therefore, the refusal of the appointing authority to appoint him cannot be said to be unjustified. The appellant alone was responsible for his plight. So, the appellant's conduct or rather misconduct delayed the appointment. Rule 27(c) is not contemplated to protect such persons. That Rule has been primarily designed to avoid loss of seniority to persons, who could not join immediately because of the distance of their place from the office, where he has to join and such other legitimate reasons. Some persons, who may be residing in the neighbourhood, will be able to join duty on the same day on getting the appointment. If such fortuitous circumstances determine seniority, the same will mar the future prospects in service, of the incumbent. To take care of that situation, Sub-Rule (c) of Rule 27 provided that if the persons join within the stipulated time, pursuant to the appointment order, their seniority shall be reckoned with reference to their rank in the advice list, based on which the appointments are made. If the interpretation canvassed by the appellant is accepted, we will be missing the wood for the trees. The appellant, who is W.A. No.1085/2009 - 9 - guilty of misconduct, cannot take advantage of his own misdoings and steal a march over the persons, who joined in time pursuant to their appointments, completed their probation and became qualified for promotion. In view of the above position, we find no reason to interfere with the judgment under appeal and accordingly the Writ Appeal is dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (P.N.RAVINDRAN, JUDGE) ps