IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WP(C).No. 7940 of 2009(J) -------------------------------------- PETITIONER(S): ----------------------- V.R.PRASANNA DEVI, ARCHAEOLOGICAL CHEMIST, REGIONAL CONSERVATION LABORATORY, DEPARTMENT OF ARCHAEOLOGY, VAZHUTHACAUD, THIRUVANANTHAPURAM BY ADVS.MR.S.M.PREM SMT.K.P.SANTHI MR.P.RAMACHANDRAN (PALAKKAD) MR.S.S.HUSSAIN MR.P.K.NIJOY RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CULTURAL AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTOR, ARCHAELOGICAL DEPARTMENT, SREEPADAM PALACE, FORT P.O., THIRUVANANTHAPURAM 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM R1 BY GOVERNMENT PLEADER MR.P.NANDAKUMAR R3 BY MR.ALEXANDER THOMAS,SC,KPSC FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.7940/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE G.O.(RT0 74/08/CAD DTD. 18.2.08. P2:- COPY OF THE GO(RT) 448/00/CAD DTD. 18.10.2000 APPOINTING SRI.K.G.SUKUMARA PILLAI AS SPECIAL OFFICER FOR RECTIFICATION OF ANOMALIES IN THE SPECIAL RULES. P3:- COPY OF THE REPORT SUBMITTED BY SRI.K.G.SUKUMARA PILLAI TO GOVERNMENT ON 29.5.01. P4: COPY OF THE DRAFT SPECIAL RULES TO BE CALLED THE KERALA ARCHAEOLOGICAL SERVICE RULES, 2004 PROPOSED BY GOVERNMENT. P5:- COPY OF THE JUDGMENT DTD. 11.1.06 IN WPC. 820/06. P6:- COPY OF THE COMMUNICATION RECEIVED BY THE PETITIONER IN APRIL 2006 FROM GOVERNMENT. P7:- COPY OF THE PETITIONER'S REPRESENTATION DTD. 16.10.07 SUBMITTED TO THE 2ND RESPONDENT. P8:- COPY OF THE 2ND RESPONDENT'S LETTER NO.A3-4768/06/DA DTD. 22.10.07. P9:- COPY OF THE JUDGMENT DTD. 10.6.08 IN WPC. 17133/08 OF THIS HONOURABLE COURT. P10:- COPY OF THE RANKED LIST HAS BEEN PUBLISHED BY THE 3RD RESPONDENT TO THE POST OF ARCHAELOGICAL CHEMIST. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE REPLY GIVEN BY THE GOVERNMENT TO THE PETITIONER. R1(b):- NOTIFICATION OF KERALA ARACHAEOLOGICAL SERVICE. R1(c):- MEMO OF KERALA PUBLIC SERVICE COMMISSION. R1(d):- CIRCULAR DTD. 7.11.01. TRUE COPY P.A. TO JUDGE tss P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 7940 OF 2009 -------------------------- Dated this the 6th day of August, 2009 J U D G M E N T Heard Sri.S.M.Prem, the learned counsel appearing for the petitioner, Sri. P.Nandakumar, the learned Government Pleader appearing for respondents 1 & 2 and Sri Alexander Thomas, the learned Standing Counsel appearing for the Kerala Public Service Commission. 2. The petitioner, who was working as Preservation Assistant in the Regional Conservation Laboratory of the Archaeology Department at Vazhuthacaud in Thiruvananthapuram was temporarily appointed under Rule 9(a)(i) of Part II of the KS&SSR in relaxation of the rules as Archaeological Chemist in the existing vacancy in the Regional Conservation Laboratory at Vazhuthacaud. Ext.P1 order of appointment issued by the Government on 18.2.2008 specifically recites that such appointment is made in the exigencies of service and that as and when a PSC hand joins duty, the petitioner will be reverted to the post of Preservation Assistant. This writ petition is filed apprehending that as the Kerala Public W.P.C. No.7940/09 2 Service Commission has published a ranked list, the petitioner will be reverted to the post of Preservation Assistant. The petitioner contends that there is a lacuna in the special rules governing appointments to the Kerala Archaeological Service and therefore she is entitled to be exempted from possessing the requisite qualifications for appointment to the post of Archaeological Chemist. Respondents 1 and 2 have filed a counter affidavit along with which they have produced Ext.R1(c) memo dated 2.3.2009 advising the candidate ranked first in Ext.P10 ranked list for regular appointment as Archaeological Chemist. The learned Government Pleader appearing for the respondents submits that in view of the interim order passed by this Court staying the petitioner’s reversion, the appointment of the said candidate could not be effected. 3. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Going by the rules presently in force, the petitioner is not qualified for appointment as Archaeological Chemist. She was temporarily appointed under Rule 9(a)(i) of Part II of the KS&SSR in relaxation of the rules in view of the exigencies of service subject to the condition that as and when a W.P.C. No.7940/09 3 PSC hand joins duty, she will be reverted to the post of Preservation Assistant. Ext.P10 ranked list of candidates selected for appointment to the post of Archaeological Chemist in the Archaeology Department came into force on 17.2.2009, one year after the petitioner was appointed on a temporary basis. Ext.R1(c) discloses that the candidate ranked first in the said ranked list has been advised for appointment. The said candidate possesses the qualifications prescribed for the post. The petitioner who was appointed in relaxation of the rules will have to vacate the post of Archaeological Chemist as and when a regular hand joins duty. The 8th proviso to Rule 9(a)(i) of Part II of the KS&SSR states that no person who does not possess the qualification, if any, prescribed for the said service, class or category, shall ordinarily be appointed under Rule 9(a)(i). It is also stipulated that every person who does not possess such qualifications and who has been or is appointed under Rule 9(a)(i) shall be replaced as soon as possible by appointing a person who possesses the required qualifications. The petitioner was temporarily appointed under Rule 9(a)(i) of Part II of the KS&SSR in relaxation of the rules as Archaeological Chemist W.P.C. No.7940/09 4 against an existing vacancy in the exigencies of service subject to the condition that when a PSC hand joins duty, she will be reverted to the post of Preservation Assistant. Therefore the petitioner cannot claim any vested right to continue in office as Archaeological Chemist. I accordingly hold that the petitioner has no right to continue in service to the detriment of a candidate selected by the Kerala Public Service Commission. The writ petition accordingly fails and is dismissed with a direction to the competent authority among the respondents to issue orders of appointment to the candidate named in Ext.R1(c) forthwith and in any case within two weeks from today. P.N.RAVINDRAN, JUDGE vps W.P.C. No.7940/09 5