IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 WP(C).No. 28382 of 2007(D) ---------------------------------- PETITIONER(S): ------------------- RAMESH P.G., AGED 43 YEARS, S/O.GOPALA BAKTHAN, PULIYELATHU HOUSE, KOZHENCHERRY P.O., PATHANANMTHITTA DISTRICT. BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU) RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, PATHANAMTHITTA. 3. KHADEEJA BEEVI V., VETTIYANICKAL, CHATHANPARA P.O., MUKKOTTUTHARA (VIA), PATHANAMTHITTA. R1 & R2 BY GOVERNMENT PLEADER SRI. NOBLE MATHEW R3 BY ADV. SRI.S.SUBHASH CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 28382/2007 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE EMPLOYMENT REGISTRATION CARD P2: COPY OF THE MEMO DATED 21/12/2006 WITH NO.S5/07/2006. P3: COPY OF THE QUESTION PAPER. P4: COPY OF THE RANK LIST/MARK LIST. P5: COPY OF THE REPRESENTATION DATED 16/03/2007. P6: COPY OF THE APPLICATION DATED 02/02/2007. P7: COPIES OF THE ANSWER SHEETS. P8: COPIES OF THE TABULATION SHEETS. RESPONDENT'S EXHIBITS: R3(a):COPY OF THE MEMO DATED 21/12/2006. R3(b):COPY OF THE PROCEEDINGS DATED 30/12/2006. R3(c):COPY OF THE APPOINTMENT ORDER DATED 30/12/2006. R3(d):COPY OF THE ORDER DTD. 27/12/09 ISSUED BY TAHSILDAR,RANNI. R3(e):COPY OF THE DISCHARGE CERTIFICATE DATED 25/08/1998. R3(f):COPY OF THE DISCHARGE CERTIFICATE DATED 11/04/2000. R3(g):COPY OF THE DISCHARGE CERTIFICATE DATED 09/06/2003. R3(h):COPY OF THE DISABILITY CERTIFICATE DATED 09/01/2007. R3(i):COPY OF THE MARRIAGE CERTIFICATE DATED 05/06/2010. R3(j):COPY OF THE BIRTH CERTIFICATE DATED 05/06/2010. R3(k):COPY OF THE GOVERNMENT ORDER BEARING G.O.(P)NO.20/98/P&ARD DATED 14/07/1998 ISSUED BY THE RESPONDENT NO.1. R3(l):COPY OF THE GOVERNMENT ORDER BEARING G.O.(P)NO.50/2007/SWD DATED 15/09/2007. R3(m):COPY OF THE GOVERNMENT ORDER BEARING NO.G.O.(P) NO.31/2008/SWD DATED 19/05/2008. /TRUE COPY/ P.A. TO JUDGE. svs S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 28382 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 20th day of October, 2011. J U D G M E N T This writ petition was elaborately heard on 27.6.2011 and I passed the following order: “The petitioner challenges the selection and appointment of the 3rd respondent to the post of Lower Division Clerk from among orthopedically handicapped persons. The petitioner contends that when the answer papers for the written test were valued, for one question the petitioner has not been given marks despite the petitioner giving the correct answer and the 3rd respondent was given marks for a wrong answer also. The total marks of the petitioner for the written test were 16.5 in the particular paper whereas that given to the 3rd respondent was 17. If the petitioner was given the one more mark, which he was entitled to get, he would have got 17.5 marks. If, for the one wrong answer one mark was deducted, the 3rd respondent would get only 16 marks. The total marks scored by the petitioner were 57 and the 3rd respondent scored 58.33. If the papers were correctly valued, the petitioner would have got 58 marks and the 3rd respondent would have got only 57.33 marks, in which case, the petitioner would have been eligible for appointment ahead of the petitioner, is the contention. The petitioner has produced the answer sheets of both the petitioner and the 3rd respondent for the one paper, the valuation of which is questioned by the petitioner. Question No.10 was to state the name of the river in Kerala, which flows eastwards. The petitioner wrote “Kabani and Pambar”. The 3rd respondent wrote “Kabani, Bhavani and Pambar”. The petitioner's answer was noted wrong and the 3rd respondent's answer was noted correct. It is admitted before me that all the three rivers flow eastwards. Again the 12th question was as to whether the statement that metro railway was started in Calcutta is correct or not. The petitioner wrote that it is correct. The 3rd respondent wrote that it is wrong and that the correct answer is Bombay. Both the petitioner and the 3rd respondent were given marks as right answers, although only one answer can be correct. That shows the callous way in which the valuation of answer papers has been made. In the above circumstances, the 2nd respondent shall file a counter affidavit explaining this discrepancy and stating as to what is the course to be taken in the circumstances of the case, insofar as evidently if the contention of the petitioner is accepted, the 3rd respondent's W.P(C) No. 28382 of 2007 -: 2 :- appointment has to be cancelled. The 3rd respondent is also a physically handicapped person. The appointment was in 2007. Four years have already elapsed. The learned Government Pleader shall get instructions from the 1st respondent also as to whether, in the peculiar facts and circumstances of the case, the Government can exercise powers under Rule 39 of the KS&SSR to give employment to both the petitioner and the 3rd respondent on equitable considerations.” Further, thereto, I passed another order on 27-9-2011, which reads as follows: “I had heard this matter elaborately on 27.6.2011 and passed an order, which would go to show that, going by the materials on record, instead of the 3rd respondent, the petitioner was the one, who ought to have been rightfully appointed. But in view of the fact that the appointment of the 3rd respondent was in 2007 and both the petitioner and the 3rd respondent are physically handicapped persons, I had directed the learned Government Pleader to get instructions from the 1st respondent as to whether, in the peculiar facts and circumstances of the case, the Government can exercise powers under Rule 39 of KS&SSR to give employment to both the petitioner and the 3rd respondent on equitable considerations. Although almost three months have elapsed, the learned Government Pleader submits that he is yet to get instructions in the matter. The learned Government Pleader shall positively get instructions in the matter by 10.10.2011. If the learned Government Pleader does not get instructions in the matter by then, the Chief Secretary shall appear in person on that date.” The learned Government Pleader now submits that the Government has powers to decide under Rule 39 of K.S and S.S.R and the Government can exercise the powers under Rule 39 in the particular facts of this case. But the learned Government Pleader is unable to tell me whether the Government intends to do so. Insofar as I have come to the W.P(C) No. 28382 of 2007 -: 3 :- conclusion that the petitioner is the person entitled to be appointed in preference to the 3rd respondent, I direct that the petitioner shall be appointed to the post of L.D. Clerk, pursuant to the selection, which is the subject matter of this writ petition in the place of the 3rd respondent. Appointment order in this regard shall be issued as expeditiously as possible, at any rate, within 2 months from the date of receipt of a copy of this judgment. 2. In respect of the 3rd respondent, the Government shall consider the case of the 3rd respondent for retention in service by exercising powers under Rule 39 of the K.S and S.S.R. Orders in this regard shall be passed as expeditiously as possible at any rate within 2 months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/