IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 WP(C).No. 14553 of 2009(L) -------------------------- PETITIONER(S): --------------------- SISUPALAN PILLAY K., VILLAGE MAN, REVENUE DEPARTMENT, KARUNAGAPPALLY, KOLLAM. (RESIDING AT UNUKKEZHATHU VEEDU, KOIVILA P.O., KOLLAM). BY ADV. SRI.O.D.SIVADAS SRI.S.SHAJI RESPONDENT(S): ------------------------ 1. THE KERALA PUBLIC SERVICE COMMISSION, PATTAM, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, THE KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KOLLAM. ADV. SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON 29/06/2010 DELIVERED THE FOLLOWING: WPC NO. 14553/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE RANK LIST DATED 8.7.2004. EXT.P2: TRUE COPY OF THE RANK LIST DATED 31.12.2005. EXT.P3: TRUE COPY OF THE RELINQUISHMENT LETTER SUBMITTED BEFORE THE 2ND RESPONDENT DATED 16.1.2008. EXT.P4: TRUE COPY OF THE ADVICE MEMO FOR THE POST OF LDC DT 27.2.2008. EXT.P5: TRUE COPY OF THE CANCELLATION MEMO DT 24.10.08. EXT.P6: TRUE COPY OF THE REPRESENTATION DT 3.11.2008. EXT.P7: TRUE COPY OF THE COMMUNICATION ISSUED BY 1ST RESPONDENT DATED 26.3.2009. EXT.P8: TRUE COPY OF THE NOTIFICATION DATED 21.7.2001. EXT.P9: TRUE COPY OF THE NOTIFICATION DT 31.12.2004. EXT.P9(a): TRUE COPY OF THE NO OBJECTION CERTIFICATE DT 22.12.2005. EXT.P10: TRUE COPY OF THE NOTIFICATION DT 31.12.2002. EXT.P10(a) & (b): TRUE COPY OF THE NO OBJECTION CERTIFICATE AND SERVICE CERTIFICATE ISSUED BY THE TAHSILDAR DT 19.2.2003. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO.14553 OF 2009 (L) ===================== Dated this the 29th day of June, 2010 J U D G M E N T The main prayers in the writ petition are for quashing Ext.P7 and to direct the respondents to retain the petitioner in the select list for by transfer category for appointment to the post of Lower Division Clerk in Kollam District and to advise the petitioner based on his seniority in the list. 2. Petitioner submits that he is working as a Villageman in the Revenue Department in the Kollam District. 3. While so, PSC invited applications for selection to the post of Lower Division Clerk (various departments) in Kollam District. Petitioner submitted his application, written test was held on 31/1/2004 and Ext.P1 is the ranked list that was published. In the ranked list, petitioner was included in both the direct recruitment and by transfer categories with Rank Nos.754 and 159 respectively. Petitioner could not get advised based on his ranking in Ext.P1. 4. Subsequently, the PSC issued another notification, and to which also, the petitioner submitted his application. Written test WPC No. 14553/09 :2 : was held on 1/10/2005, and in Ext.P2 ranked list, the petitioner was included at Rank No.378 in the direct recruitment quota. It is stated that by virtue of the provisions contained in GO(P) No.39/89/P&ARD dt.8.12.1989, in case candidates included in the ranked list prepared for recruitment by transfer could not secure appointment before the expiry of the ranked list, the names of such candidates will be included in the same order at the top of the new ranked list of the low paid employees drawn by the PSC subsequently, and on that basis, they will be advised for appointment. On that basis, petitioner's name was included in the subsequent ranked list in the by transfer category with rank No.104. Ext.P2 is the said ranked list. 5. According to the petitioner, on account of his ailments, he did not want to get advised in the direct recruitment quota, and therefore, he submitted Ext.P3 relinquishing his claim to be advised and requesting to be retained in the by transfer category ranked list. It is stated that despite Ext.P3, 2nd respondent issued Ext.P4 advising the petitioner in the direct recruitment quota. However, petitioner did not join the post in pursuance to Ext.P4, and therefore, Ext.P5 was issued by the 2nd respondent cancelling the advice. WPC No. 14553/09 :3 : 6. According to the petitioner, since by Ext.P5, he was excluded from the ranked list for direct recruitment and for by transfer category, he submitted a representation contending that in view of the relinquishment he submitted, he is entitled to be retained and advised based on his ranking in the by transfer category ranked list. Ext.P6 was considered and the PSC issued Ext.P7 stating that since he was advised from the ranked list, and as he did not join the post, in terms of the Rules prevailing, his name is liable to be removed from the list. On that basis, his request was rejected. It was thereupon that this writ petition was filed with the aforementioned prayers. 7. PSC has filed its counter affidavit and in the counter affidavit, they dispute the claim of the petitioner that Ext.P3 relinquishing appointment in the direct recruitment quota was submitted. According to the PSC, petitioner was advised against the vacancy reported on 1/1/2008 and he did not join duty and that therefore, the resultant NJD vacancy was reported to the PSC on 22/8/08 and a substitute was advised on 24/10/2008. It is stated that they did not receive Ext.P3 relinquishment, and that, on 3/11/2008, petitioner produced a copy of Ext.P3 and that too without getting his signature duly attested. WPC No. 14553/09 :4 : 8. According to the PSC, even if he had applied for relinquishment in time, the Commission was bound to remove his name from both the lists. This according to them is for the reason that in terms of Rule 18(iii) of the KPSC Rules of Procedure, a candidate whose name has been included in more than one ranked list for the same post, finalised on the basis of the very same notification under different methods of recruitment/appointment, is liable to have his name removed from the ranked lists, once his name has been advised for recruitment from any one of the ranked lists. It is stated that the petitioner having been advised for appointment from the direct recruitment category, his name cannot be retained in the by transfer category. 9. Both the petitioner and the PSC relied on Rule 18(iii) of the KPSC Rules of Procedure. Rule 18(iii) was inserted by notification dated 21/7/01, a copy of which has been produced by the petitioner as Ext.P8. This rule reads as under:- “(iii) A candidate whose name has been included in more than one Ranked List for the same post in the Same department/Various departments finalized on the basis of the very same notification under different methods of recruitments/appointments and when such a candidate is advised by the Commission for recruitment from anyone of the aforesaid Ranked Lists, his name shall be removed from the other Ranked List/Lists”. WPC No. 14553/09 :5 : A reading of this Rule shows that a candidate whose name has been included in more than one ranked list for the same post, once advised by the PSC from anyone of the ranked lists, his name shall be removed from the other ranked list/lists, in cases where the ranked lists have been finalised on the basis of the very same notification. This being the purport of the Rule, the question is whether the petitioner's name is liable to be removed from Ext.P2 ranked list for the by transfer category. 10. As already seen, Ext.P1 is the first ranked list. In that ranked list, petitioner was included in the direct recruitment and by transfer category ranked lists. The recruitment which resulted in Ext.P1 was pursuant to a notification issued by the PSC. During the currency of the ranked list, for want of vacancies, petitioner was not advised. A second notification and the selection pursuant thereto resulted in Ext.P2 ranked list. Along with the ranked list so finalised, the by transfer category ranked list which was finalised pursuant to the notification resulting in Ext.P1 was also included by virtue of the provisions contained in GO(P) No.39/89/P&ARD dated 8.12.1989. With the result, the inclusion of the petitioner in Ext.P2 in the direct recruitment category and his inclusion in Ext.P2 in the by transfer category are not based on WPC No. 14553/09 :6 : the selection finalised pursuant to “same notification”. This is a condition precedent for the applicability of Rule 18(iii) of the KPSC Rules of Procedure. If that be the factual situation, Rule 18(iii) is inapplicable, and consequently, the petitioner's name could not have ben deleted. Even if it is true that the petitioner did not join for duty, or did not submit his application for relinquishment, his name is liable to be retained in the by transfer category ranked list. 11. In that view of the matter, Ext.P7 order passed by the PSC and the petitioner's removal from the by transfer category ranked list in Ext.P2 cannot be upheld. Therefore, Ext.P7 have to be quashed and I do so. Respondents are directed to retain the petitioner's name in the by transfer category ranked list in Ext.P2 and the petitioner shall be advised for appointment as Lower Division Clerk if he would have been advised had he not been removed from the ranked list. 12. Petitioner shall produce a copy of this judgment before the 2nd respondent for compliance. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp