IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 WP(C).No. 27983 of 2009(P) --------------------------------------- PETITIONER(S): ------------------------ DR.THUSHANTH THOMAS, AN 38, TC 2/2169(1), CHIRAYIL PARAMBIL, ADARSH NAGAR, PATTOM P.O., THIRUVANANTHAPURAM-4, REP. BY HIS POWER OF ATTORNEY HOLDER, C.O.THOMAS, S/O.LATE K.O.OOMMEN, CHIRAYIL PARAMBIL, ADARSH NAGAR, PATTOM P.O., THIRUVANANTHAPURAM-4. BY ADV. MR.P.C.SASIDHARAN RESPONDENT(S): ------------------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE K.P.S.C., PATTOM, THIRUVANANTHAPURAM. 2. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, OFFICE OF THE K.P.S.C., PATTOM, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY AFFAIRS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R3 BY GOVERNMENT PLEADER MR.DILEEP MOHAN. R1 & R2 BY ADV. MR.ALEXANDER THOMAS,SC,KPSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27983/2009-P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.EA 3-47075/04/DHS DATED 15/01/2005. EXT.P2: COPY OF THE GAZETTE NOTIFICATION DATED 14/11/2005. EXT.P3: COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 19/03/2007. EXT.P4: COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 21/03/2007. EXT.P5: COPY OF THE ADMISSION TICKET ISSUED BY THE PSC. EXT.P6: COPY OF THE ORDER EVIDENCING THE ACCEPTANCE OF HIS RESIGNATION BY THE HEALTH DEPARTMENT DATED 17/01/2007. EXT.P7: COPY OF THE NOTIFICATION DATED 13/11/2007. EXT.P8: COPY OF THE COMMUNICATION ISSUED BY THE COMMISSION DATED 31/01/2008. EXT.P9: COPY OF THE JUDGMENT IN WP(C) NO. 5822/2008 DATED 25/06/2009. EXT.P10: COPY OF THE NOTICE DATED 12/08/2009. EXT.P11: COPY OF THE COMMUNICATION ISSUED BY THE COMMISSION DATED 09/09/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 27983 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of February, 2010 J U D G M E N T The petitioner claims to be possessing an outstanding academic career. He is presently undergoing D.M. Course in Endocrinology at the All India Institute of Medical Sciences, New Delhi. Prior to the same, he was appointed as Assistant Surgeon in the Health Service Department of the Government of Kerala pursuant to advice by the PSC on 15.01.2005. While he was working as Assistant Surgeon, the PSC issued notification inviting applications from qualified candidates for selection and appointment as Senior Lecturer in Medicine in the Kerala Medical Education Department of the Government of Kerala. The petitioner possessed all the qualifications prescribed for the post and therefore he applied. But since he was in the Government service he was supposed to produce a No- Objection Certificate from the Head of Office along with W.P.(C)No. 27983 of 2009 -2- his application. Petitioner did not produce the same, since according to him, his appointment was purely provisional under Rule 9 (a) (i) of the Kerala State and Subordinate Services Rules, 1958 and as per general conditions, the said condition is not applicable to persons appointed under Rule 9(a)(i) of the KS & SSR. The petitioner was allowed to write the written test and he was included in the short list prepared pursuant to the written test. But by Ext.P8 communication the petitioner's candidature was rejected for not producing N.O.C. from the Head of the Department. Aggrieved by the said decision of the Commission, the petitioner filed O.P.No.5822/2008, in which this court by an interim order, directed that the petitioner to be provisionally interviewed. This court by Ext.P9 judgment directed reconsideration of the matter in view of the fact that the petitioner is no longer in service and therefore it is impossible for him to produce a no-objection certificate. But by Ext.P11 order, the Commission again reiterated W.P.(C)No. 27983 of 2009 -3- their stand that the petitioner ought to have produced the NOC and since he has not produced the same, his application is liable to be rejected. Petitioner is challenging Ext.P11 order. 2. An affidavit has been filed on behalf of respondents 1 & 2 wherein they take the contention that all appointments pursuant to Public Service Commission advice are in the first instance made provisional only for the purpose of ascertaining the antecedents of the appointee under Rule 10 (b) proviso. Regarding the 2nd contention that the petitioner is no longer in service, the Commission take the stand that since at the time of submitting application the petitioner was in service he should have produced the N.O.C. along with the application, under the relevant rules of the Kerala Government Servants' Application for the Posts (Private Employment and Government Service) Rules, 1958. Therefore the standing counsel for the Commission would submit that the petitioner's application is not liable W.P.(C)No. 27983 of 2009 -4- to be considered. He also relies on the decision of this court in W.P.(C) No.4173/2007 in support of the contentions. 3. I have considered the rival contentions in detail. I am of the opinion that since Ext.P9 judgment in the writ petition filed by the petitioner himself has become final, the Commission cannot take a stand contrary to Ext.P9 judgment. In paragraphs 5 to 7 of Ext.P9 judgment the learned Judge held thus: “5. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the Commission. Relying upon Ext.P11 order of appointment, it is contended by the learned counsel for the petitioner that the appointment of the petitioner to the post of Assistant Surgeon in the Health Services Department was on temporary basis under Rule 9 (a) (i) of Kerala State and Subordinate Service Rules, 1958. Inviting my attention to the application form Ext.P2, it is submitted that therein also it has been specified that candidates need not enclose copies of any document/certificate in proof of their claims. Apart from the same, it is contended that he had resigned from service, which was accepted as per Ext.P3, and which is effective from 02/01/2007. Therefore, as on the date of issuance of Ext.P6 dated 19/03/2007, he has ceased to be in service and hence, the requirement to produce the no objection certificate, could not be complied with. It is therefore, submitted that as far as the petitioner is concerned, it was impossible to produce the no objection certificate as per memo dated 19/03/2007, within the time allowed therein. It is further submitted that other applicants who are continuing in the Health Department, who have not obtained the certificate or N.O.C. from the Head of Office as on the date of submission of application, have obtained the same on receipt of Ext.P6 communication and W.P.(C)No. 27983 of 2009 -5- produced the same before the first respondent. It is stated that the first respondent had accepted such certificates or N.O.C.'s submitted by other applicants who are still continuing in the Government service. It is therefore, contended that as far as the petitioner is concerned, he is unable to produce a certificate or N.O.C. from the Head of Office, as he has already resigned from the Government service even before the receipt of Ext.P6 communication. 6. It is evident from the proceedings Ext.P3 that the petitioner's resignation was duly accepted. The requirement to produce the N.O.C. or receipt was made known to him as per Ext.P6 notice. It is clear from the application form that the applicant was not required to produce any other documents at the time of submitting the application. Therefore, as far as the case of the petitioner is concerned, the requirement to produce N.O.C. as on the date of Ext.P6 has become an impossibility. But going by the contents of Ext.P8, this aspect has not been considered by the P.S.C. His application stands now rejected stating that he has not produced the N.O.C. Therefore, the matter requires a reconsideration. The fact that other applicants have also submitted the application without producing the N.O.C. along with the application and have produced them only after Ext.P6 notice was issued to them shall also be considered. Clearly, it is a case where the petitioner's contention, that there is an impossibility or difficulty for him to produce these certificates, requires a deep consideration. Since he is not in the service as Assistant Surgeon, there is no purpose in asking him to produce a no objection certificate from the former employer. Insistence on the same will be meaningless also. 7. In that view of the matter, Ext.P8 is set aside and the respondents will consider this matter afresh and then pass appropriate orders after considering the contentions of the petitioner in detail and in accordance with the findings and observations made above within a period of four weeks from the date of receipt of a copy of this judgment. Depending upon the said order, the Commission will consider the petitioner for advice in any suitable vacancy without disturbing the candidates already advised if any and in accordance with his ranking.” W.P.(C)No. 27983 of 2009 -6- 4. According to the standing counsel for the Commission there is no finding in Ext.P9 judgment but only reiteration of the contentions of the parties. I am unable to agree with that contention in view of the findings in the judgment quoted above. I find that there is a clear and definite finding that it is impossible for the petitioner to produce the NOC now and the insistence on the same will be meaningless. That being so, having suffered Ext.P9 judgment, which has become final, the Commission cannot now reject the application of the petitioner on the ground this court found to be meaningless. Since there is a judgment in favour of the petitioner between the parties the Commission cannot rely on a judgment in another case in support of the contention. In the above circumstances Ext.P11 is liable to be quashed. I do so. The Commission is directed to consider the candidature of the petitioner without insisting on production of NOC and include him in the rank list at the appropriate place in the rank list in W.P.(C)No. 27983 of 2009 -7- accordance with the marks he scored in the written test and interview. However, going by the rank he obtains, if the petitioner is entitled to be advised, the candidates already advised shall not be disturbed as held in Ext.P9 judgment. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/