IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 WA.No. 1931 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.14553/2009 .................... APPELLANT(S): RESPONDENTS IN WP: ----------------------------------------------------------- 1. KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY. 2. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KOLLAM. BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC RESPONDENT(S): PETITIONER IN WP: ---------------------------------------------------------- SISUPALAN PILLAY K, VILLAGEMAN, REVENUE DEPARTMENT, KARUNAGAPPALLY, KOLLAM (RESIDING AT UNUKKEZHATHU VEEDU, KOIVILA PO, KOLLAM.) BY ADVS. SRI.S.SHAJI, SRI.O.D.SIVADAS. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss W.A.NO.1931/2010 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A: COPY OF THE ENGLISH VERSION OF EXT.P10 SELECTION NOTIFICATION DTD. 31/12/2002 FOR THE POST OF LDC. ANNEX.B: COPY OF THE G.O.(P) 39/89/P&ARD DTD. 8/12/1989. ANNEX.C: COPY OF THE ENGLISH VERSION OF EXT.P9 SELECTION NOTIFICATION DTD. 31/12/2004 FOR THE POST OF LDC. ANNEX.D: COPY OF JUDGMENT OF THIS HON'BLE COURT IN OP.3444/92. ANNEX.R1(A):COPIES OF THE POSTAL RECEIPTS DTD. 03/07//2010. ANNEX.R1(B):COPY OF THE ACKNOWLEDGEMENT CARD ENDORSED BY THE SECRETARY, KPSC DTD. 06/07/2010. ANNEX.R1(C): COPY OF THE ACKNOWLEDGEMENT CARD ENDORSED BY THE DISTRICT OFFICER, KPSC, KOLLAM DTD. 06/07/2010. ANNEX.R1(D): COPY OF THE G.O.(P) NO.39/89/P&ARD DTD. 08/12/89. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss C.N.Ramachandran Nair & Bhabani Prasad Ray, JJ. ==================================== W.A.No.1931 of 2010 ==================================== Dated this the 16th day of June, 2011. JUDGMENT Ramachandran Nair, J. Appeal is filed by the Public Service Commission against the judgment of the learned single Judge directing restoration of the respondent in the Part-II rank list prepared for appointment by transfer from last grade employee to Lower Division Clerk. We have heard standing counsel for P.S.C. and counsel for the respondent. 2. The respondent joined the Village Office as a low paid employee in the year 1999. He is entitled to claim appointment in the 5% quota reserved for appointment of LDC in Government departments. When PSC called for applications from candidates for appointment directly as well as for filling up 5% quota reserved for appointment by transfer, respondent also applied and participated in the written examination conducted pursuant to the notification issued in 2004. Respondent got included in the rank list, both in the merit W.A.No.1931 of 2010 -:2:- quota as well as in the quota reserved for appointment by transfer. He stood 754 in the Part-I list, which is for appointment from merit quota and was 159 in Part-II list which is for appointment by transfer from low paid employees. During the currency of Ext.P1 rank list prepared on 8.7.2004, the respondent could not get advice for appointment to the post of LDC. However, there is a general Government Order, G.O.(P)No.39/89/P&ARD dated 8.12.1989, whereunder low paid employees appearing in PSC test for promotion post as LDC and securing 40% marks are entitled to be included in the Part-II list in the next selection list prepared by PSC without their participations in the test again. The general provision of the Government Order was incorporated in the subsequent notification issued by the PSC for preparing another rank list wherein the respondent participated for selection only in the general category. By virtue of the above Government Order, the respondent was included in Part-II rank list prepared for posting by promotion with Rank No.104. In the second examination for appointment from general candidates, respondent got Rank No.378. A fresh rank list W.A.No.1931 of 2010 -:3:- Ext.P2 was published by PSC on 1.4.2006. However, respondent's case is that through Ext.P3 letter dated 16.1.2008 he applied to the PSC for relinquishment of his claim for appointment from the general merit list and to retain his name in Part-II rank list for appointment by transfer. However, PSC did not send any communication and on the other hand, vide Ext.P4 dated 27.2.2008 respondent was given the advice for appointment from the general merit quota. Respondent's case is that since he continued in the Part- II rank list for appointment by transfer, he did not join based on the advice. PSC thereafter vide Ext.P5 dated 24.10.2008 informed the respondent that advice issued in his case was cancelled. 3. The respondent issued Ext.P6 letter to PSC on 3.11.2008 informing the PSC that he had relinquished his claim to be appointed from the general merit quota and he wants to be appointed from the Part-II list. However, PSC, vide Ext.P7 rejected the same on 26.3.2009. Consequent upon the decision of the PSC, the respondent was not included in the carried over Part-II rank list prepared with effect from 31.12.2008 which came into force on 1.1.2009. Writ W.A.No.1931 of 2010 -:4:- petition was filed by the respondent challenging Ext.P7 and also Part-II rank list prepared which is valid from 1.1.2009. For the first time before this Court PSC justified the action of removal of the respondent from the rank list by referring to Rule 18 (iii) of KPSC Rules of Procedure which states that when the very same person gets selected and included in the rank list for appointment under two different methods and when offer for employment was given from one list, the failure to accept the same will lead to cancellation of his name from the other list. Learned single Judge found that the inclusion of the respondent in the two rank lists for selection to the same post is not under one single notification. Based on this reason, writ petitions are allowed directing the PSC to restore the respondent in Part-II rank list prepared on 31.12.2008 which is valid from 1.1.2009 onwards. It is against this judgment PSC has come up in this appeal. 4. Standing counsel appearing for the PSC referred to Clause (c) of the notification wherein the above referred Government Order is extracted which entitles the respondent to continue in the next list W.A.No.1931 of 2010 -:5:- by virtue of the selection he obtained for appointment by transfer to the post of LDC. The contention of tbe PSC therefore is that respondent got included in Parts-I and II lists by virtue of this provision of the notification and therefore the finding of the learned single Judge that he was not included in the selection made pursuant to the same notification issued by the PSC and so much so Rule 18 (iii) of the Rules does not apply is not tenable. We do not think there is any need for us to decide this issue because, on going through the entire correspondence, particularly Exts.P4 and P5 cancellation of advice by the PSC, we find that PSC never informed the respondent that his relinquishment or failure to join the post offered to him from the merit list prepared from open merit quota candidates will lead to cancellation of his inclusion in the Part-II list which is for appointment by transfer. The Rules of Procedure of PSC obviously was not known to the respondent. For the first time the application of the Rule is placed by the PSC before the High Court in defence of the action taken. What we notice is that, the respondent, a low paid employee, with great difficulty wrote and passed the examination W.A.No.1931 of 2010 -:6:- which entitles him for appointment in a promotion post, that is LDC, and he is entitled to continue in the periodical rank list prepared until he is promoted. In our view, when PSC offered him employment from the merit list, they should have informed him that his relinquishment or failure to join pursuant to the offer will lead to cancellation of his selection in Part-II list which is the list prepared for appointment by transfer. PSC has no explanation about the request for relinquishment made by the respondent vide Ext.P6. It is admitted before us that if PSC had not removed the respondent from Part-II list by applying Rule 18(iii) of the Rules, he would have already got employment in the order of seniority. There is nothing to indicate that the respondent had relinquished his claim for promotion post for which he qualified by participating in the examination. We, therefore, cannot sustain the action of the PSC in removing the respondent from Part-II select list without giving any notice or information about the rule proposed to be applied, which, in our opinion, PSC ought to have done or at least they could have informed him before cancellation of his name from the rank list. We, W.A.No.1931 of 2010 -:7:- therefore, do not find any ground to interfere with the judgment of the learned single Judge but direct the PSC to include the respondent in the Part-II select list which is the right conferred on him vide Government Order above referred. C.N.Ramachandran Nair, Judge. Bhabani Prasad Ray, Judge. sl.