IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 WP(C).No. 36843 of 2010(E) ---------------------------------------- PETITIONER(S): ------------------------ DR.T.V.KRISHNADAS, AGED 41 YEARS, S/O.K.V.SANKUNNI NAIR, UNICHEM VEEDU, NEAR RAILWAY STATION, TANUR P.O., MALAPPURAM. BY ADV. SRI.P.FAZIL SRI.R.SREERAJ RESPONDENT(S): -------------------------- 1. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, OFFICE OF THE K.P.S.C.PATTOM, THIRUVANANTHAPURAM, PIN-695 004. 2. THE SECERTARY, KERALA PUBLIC SERVICE COMMISSION, OFFICE OF THE K.P.S.C., PATTOM, THIRUVANANTHAPURAM, PIN-695 004. 3. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY AFFAIRS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. R1 & R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R3 BY GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.36843/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE NOC NO.EB2/42268/10/DHS DATED 13/7/2010 ISSUED BY THE DIRECTOR OF HEALTH SERVICES. P2 COPY OF THE NOC IN THE PRESCRIBED FORM DATED 13/8/2010 ISSUED BY THE DIRECTOR OF HEALTH SERVICES. P3 COPY OF THE REPRESENTATION DATED 2/9/2010 SUBMITTED BY THE PETITIONER TO THE CHAIRMAN,PUBLIC SERVICE COMMISSION. P4 COPY OF THE ORDER NO.SSV/SR.LR(MEDICINE)/MED/08 DATED 24/09/2010 ISSUED BY THE SECERTARY, PUBLIC SERVICE COMMISSION. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 36843 of 2010-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of August, 2011. JUDGMENT The petitioner herein seeks to quash Ext.P4 whereby the Public Service Commission informed that the withheld results cannot be released by the Commission. 2. It is a case where the petitioner, while working as Assistant Surgeon in Health & Family Welfare Department, availed leave without allowance for five years and went abroad. During this period he applied for the post of Senior Lecturer in Medicine, in Medical Education Department. He was invited for an interview and was required to produce a No Objection Certificate from the employer. When he approached for a No Objection Certificate, he was asked to report for duty first. Accordingly he rejoined service. He could not produce the NOC at the time of interview and the result was withheld. Even though one more opportunity was given to produce N.O.C. and it was produced also, it was returned by saying that the same is not in the proper form. The subsequent representation resulted in issuance of Ext.P4. 3. The question is whether Ext.P2 is a valid N.O.C. A reading of wpc 36843/2010 2 Ext.P2 shows that what is certified is that the copy of the application dated 30.11.2005 for selection to the post of Senior Lecturer in Medicine in the Medical Education Department, has been received in the office from the petitioner on 12.8.2010. 4. The contention taken by the Public Service Commission is that the N.O.C. produced by the petitioner does not comply with Rule 2 (2)(a) of Kerala Government Servant's Application for posts (Private Employment) and Government Service) Rules, 1958. It is pointed out that the petitioner should have obtained a receipt by getting prior consent, since he was employed under the Government. He was directed to produce a receipt from the Head of Office as stipulated in para 20 of the General Conditions appended to the notification. 5. That the rule prescribes a particular method, cannot be disputed. The same legal issue was considered by this Court in the judgment in W.P. (C) No.35017/2010. Therein, this Court, after considering various aspects, held as follows: “17. This is case where the petitioner was obliged to obtain and produce a receipt in terms of Sub-rule 2(a) of Rule 2 read with Rule 2(2A) of the Kerala Government Servants' Application For Posts (Private Employment and Government Service) Rules, 1958. This requirement has been incorporated under the common wpc 36843/2010 3 instruction in paragraph 20 of the General Conditions of the notification also. The question is whether the same is mandatory in nature. Evidently, going by the facts of this case, the petitioner has not produced a receipt in the form prescribed as per Ext.P3. There is no certificate by the Department also that the petitioner had applied for receipt on or before the last date of application. What is produced is only a no-objection certificate for the participation in the interview. Hence, there is no document to show the receipt of prior permission. 18. The theory of substantial compliance strongly put forward by the learned counsel can have application only in cases where the statutory rule can be termed as directory. But if the Rule is held as mandatory, any non compliance will be fatal.” This Court did not accept the theory that there is a substantial compliance also. Going by the above legal position and going by the facts of the case, there is no valid and proper receipt produced by the petitioner in terms of Rule 2 (2)(a) of the Rules. The certificate produced was, therefore, rightly rejected by the Public Service Commission. Therefore, the writ petition is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/