IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 W.A. No. 1755 of 2007 ------------------------------ AGAINST THE JUDGEMENT IN OP.17908/2000 Dated 24/05/2007 .................... APPELLANT(S): RESPONDENTS 1 TO 4 IN WP(C): ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, AGRICULTURE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF AGRICULTURE, DIRECTORATE OF AGRICULTURE, THIRUVANANTHAPURAM. 3. THE PRINCIPAL AGRICULTURAL OFFICER, MALAPPURAM DISTRICT. 4. THE ASSISTANT DIRECTOR OF AGRICULTURE, WANDOOR. BY GOVERNMENT PLEADER SMT. R. BINDU RESPONDENT(S): PETITIONER & 5TH RESPONDENT IN WP(C): -------------------------- 1. SHERLY KURIAKOSE, KANJIRAKATTU HOUSE, K.P.X/549, POTHUJANAM LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. 2. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. R1 BY SR. ADV. SMT. SUMATHI DANDAPANI & ADV. SRI.MILLU DANDAPANI. R2 BY STANDING COUNSEL SRI. ALEXANDER THOMAS. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. No.1755 of 2007 ------------------------------ Dated this, the 27th day of July, 2009 JUDGMENT Balakrishnan Nair, J. The respondents 1 to 4 in the Original Petition are the appellants. The first respondent herein was the petitioner. The brief facts of the case are the following: The first respondent was an applicant for the post of Agricultural Officer Gr.II, under the Director of Agriculture, when applications for the same were invited by the Public Service Commission. She was included in the rank list and based on her ranking, the P.S.C. advised her by Ext.P1 memo dated 16.3.1999 for appointment to the said post. Based on the said advice, the Director of Agriculture, Thiruvananthapuram, who is the appointing authority, appointed her as Agricultural Officer Gr.II, by order dated 27.4.1999. In the light of that order, the Principal Agricultural Officer, Malappuram, by Ext.P2 proceedings posted her to Krishi Bhavan, Thrikkalangode, under the Assistant Director of Agriculture, Wandoor. Ext.P2 stipulated that she should join duty within fifteen days of receipt W.A. No.1755 of 2007 - 2 - of that order. The petitioner submitted that she received that order on 31.5.1999. Immediately, she submitted Ext.P3 representation dated 5.6.1999 before the Principal Agricultural Officer, Malappuram District, praying that she may be given 45 days more time for joining duty. The relevant portion of the representation giving the reasons for seeking extension of time is the following: “I have just completed my Ph.D. from the College of Agriculture, Vellayani, Thiruvananthapuram. I have to return the belongings of the college and also get the relieving order from the Department of Horticulture, Vellayani, Thiruvananthapuram.”. Citing the very same reasons given in Ext.P3, the petitioner submitted another representation, Ext.P4 dated 5.6.1999, before the Director of Agriculture stating that she may be granted 45 days more for joining duty. Soon thereafter, on 14.6.1999, she moved the Government by filing Ext.P5 representation praying that she may be given three months extension of time for joining duty. The reasons given for seeking further extension of time, stated in Ext.P5 were the W.A. No.1755 of 2007 - 3 - following: “I am staying at Thiruvananthapuram with my two children, my son is studying in first standard at Sarvodaya Vidyalaya and the daughter is only two years' old. At present it is not possible for me to join at Malappuram which is far away. So, I request your good office to grant me three months' extension for joining duty.”. Soon thereafter, the Director of Agriculture issued Ext.P6 communication calling upon her to join duty before the Principal Agricultural Officer, Malappuram within ten days from the date of receipt of the said communication. She was alerted that if she does not join duty, further action will be taken to cancel her advice without any further intimation. The said order also indicated that the extension of time sought for by her in representation dated 5.6.1999, Ext.P4, is already over. The relevant portion of the said order reads as follows: “Your immediate attention is invited to the reference cited. This is to inform you that the period of extension of joining time requested by you as per reference 2nd cited has already expired. But till date you have not turned up for duty. W.A. No.1755 of 2007 - 4 - In this circumstances, you are hereby directed to report for duty before the Principal Agricultural Officer, Malappuram - within 10 days from the receipt of this communication otherwise further action will be taken to cancel your advice without any further intimation.”. In answer, the petitioner filed Ext.P7 representation before the Director, pointing out that the Minister for Agriculture has granted her three months time for joining duty and prayed that she may be allowed to join duty after the said period of three months. The relevant portion of that representation, reads as follows: “I have been directed to join duty within 10 days vide your letter mentioned above. In this regard, I draw your kind attention to the request made by me to the Honourable Minister for Agriculture for granting me 3 months time for joining duty on 14.6.1999. The Honourable Minister has granted me 3 months' time for joining duty. The file No.827/A/99/M(Agr) has been forwarded to the Directorate. So, I request your good office not to make any action as mentioned in your letter and also allow me to join duty after 3 months.”. W.A. No.1755 of 2007 - 5 - Later, she submitted Ext.P8 representation before the Government on 3.9.1999, praying for a further period of three months for joining duty at Malappuram. The above extension of time was sought in extension of the three months' time allegedly granted by the Minister for Agriculture for joining duty, which was going to expire by 15.9.1999. The reason given in Ext.P8 for extension of time was identical to the reason stated in Ext.P5, which we have already quoted above. On 3.12.1999, the petitioner submitted another representation, Ext.P9, for a further period of three months, apparently from 15.12.1999. The extension was sought on the same grounds, sought by her earlier. In the meantime, she submitted Ext.P13 representation before the Government on 16.2.2000 praying that she may be given a suitable posting in the Tissue Culture Lab at Kazhakkuttom instead of Krishibhavan, Thrikkalangode, Malappuram. Later, on 7.4.2000 she submitted Ext.P10 representation before the Secretary, Public Service Commission, praying that she is ready to join duty, but she was not permitted to join by the Directorate of Agriculture. She was W.A. No.1755 of 2007 - 6 - also told that the “non-joining duty” has been reported to the P.S.C.. So, she prayed in the representation to the P.S.C. that the report of “non-joining duty” may not be accepted. Thereafter, she filed Ext.P11 representation dated 10.4.2000 before the Director of Agriculture, praying that she may be permitted to join duty. The relevant portion of the said representation reads as follows: “I have received the above referred Appointment Order from your good office on 31.5.1999. Since I have to complete my formalities at Agricultural College, Vellayani, I requested your good office vide letter dated 5.6.1999 for extension of 45 days for joining duty, for which no communication has been received and I have given request before the Honourable Minister of Agriculture vide letter dated 14.6.1999 for allowing me three months period for joining duty at Malappuram. In the meantime, from the Directorate of Agriculture, I received a notice to join within 10 days for which I have replied to your good office on 14.8.1999 (letter referred as 3) in which I have clearly stated that Honourable Minister has acknowledged the receipt of the request and it has been forwarded to APC. So, I request your good W.A. No.1755 of 2007 - 7 - office to allow me the three months period for joining duty for which no reply has been intimated from your office. Since no response was received by me, I enquired with Administrative Officer regarding my position, but, he has not given a reply. So, finally, on 6th April, I have requested your good office to allow me to join the duty. But, the Administrative Officer said that he has sent non-joining report to PSC and so now it is not possible to join the duty. On 7th I enquired with PSC and it is learnt that no non-joining report has been received by them. And I am eligible for joining duty, if your good office allows me to do so. So, I humbly request you to allow me to join duty immediately and also grant the extension of the joining time and not to take any action due to my ignorance and the fact that I am not familiar with the procedure of the Department.”. (emphasis supplied) The above representation would show that her representation dated 14.6.1999 (Ext.P5) was forwarded from the Minister's office to the office of the Agricultural Production Commissioner. In other words, her claim that, her representation was allowed by the Minister, has been modified as acknowledged by the W.A. No.1755 of 2007 - 8 - Minister. It was followed by Ext.P10 representation in Malayalam. In that representation also, she states that Ext.P5 representation filed by her before the Minister has been forwarded from the Minister's office to the Agricultural Production Commissioner. After filing Ext.P10, this writ petition was filed seeking appropriate reliefs. The official respondents filed a counter affidavit stating that the Government never granted extension of time to her to join duty. Since, she did not join duty within the time limit provided in Ext.P6, the non- joining duty vacancy was reported to the P.S.C. on 23.12.1999. The petitioner filed a reply affidavit, in which she asserted that the Government have granted three months time for joining duty and the same, according to her, is evident from Ext.P16 communication dated 13.8.1999. Ext.P16 is a usual communication issued from the Minister's office to the persons filing representation. The said communication would show that her petition dated 14.6.1999 has been forwarded to the Agricultural Production Commissioner for further action. 2. The learned Single Judge after hearing both sides W.A. No.1755 of 2007 - 9 - took the view that, in view of Ext.P14 Circular, the subordinate officers should have waited for the decision of the Government. So, the cancellation of the appointment order without giving the petitioner a further chance to join duty is illegal. Based on that finding, the Original Petition was allowed. Ext.P14 is a circular dated 14.9.1994 issued by the Government governing the grant of extension of time for joining duty to P.S.C. recruits. The Government have subsequently issued another Circular dated 22.11.1994, governing grant of extension of time. The said Circular reads as follows: “No. 960/ADV. C3/94/P & ARD Thiruvananthapuram, 22nd November, 1994 Sub: Public Services - Recruitment to Public Services - Orders of appointment and joining duty - Extension of Joining time - Procedure to be followed - Instructions issued. Ref. 1. Govt. Circular No.57955/SD1/84/GAD dated 30-5-1984 2. Govt. Circular No.57209/SD4/86/GAD dated 25-8-1986 3. Govt. Circular No.96060/Adv.C3/94/P ARD dated 13-9-1994. According to the instructions now in force, the candidates advised for appointment by the Public Service Commission are required to join duty within the joining time specified in the appointment order. 2. However, in deserving cases, the Appointing Authority can grant extension of joining time upto a maximum period of 45 days from the date of the appointment order. 3. Joining time beyond 45 days can be granted by Government to those candidates who are in the midst of any educational course or are undergoing training so as to enable them to complete that course/training and then report for duty. 4. In the circular cited third, it was instructed that before “Not Joining Duty” report is sent to the Public Service Commission regarding any candidate, the Appointing Authority should ensure that no request for extension of joining time is under consideration by the Government in respect of that candidate. It has come to the W.A. No.1755 of 2007 - 10 - notice of Government that several candidates approach the Government for extension of joining time very late and by that time the Appointing Authorities might have reported, the fact of 'Not Joining Duty' to the Public Service Commission and the Public Service Commission would have cancelled the advice of such candidates. 5. In these circumstances, in order to regulate the procedure regarding grant of extension of joining time, the following instructions are issued.- (i) The Appointing Authorities should clearly specify the date upto which the joining time is available to the candidates to join duty, in the appointment order. Vague terms such as “Join forthwith”, “Join immediately” etc. should not be used. (ii) Joining time upto 45 days can be granted by the Appointing Authorities, in deserving cases, on request. (iii) Joining time beyond 45 days can be granted by the Government (in the concerned Administrative Department of the Secretariat) to those candidates who are in the midst of any educational course or are undergoing any training so as to enable them to complete the course/training and then to report for duty. (iv) The applications if any, for extension of time beyond 45 days should be submitted to Government by the candidates through the Appointing Authority within 45 days from the date of the appointment order. 6. Appointing Authority shall ensure that no request for extension of joining time is pending with the Government, before the fact of 'Not Joining Duty' is reported to the Public Service Commission.”. (emphasis supplied) The third paper referred to in the above Circular is Ext.P14 relied on by the learned Single Judge. 3. Feeling aggrieved by the decision of the learned Single Judge, this writ appeal has been filed by the respondents in the original petition. According to the appellants, the respondent/petitioner was granted joining time of 45 days by the appointing authority. Thereafter, further 10 days time was W.A. No.1755 of 2007 - 11 - granted. Since she did not join duty, the non-joining duty vacancy was reported to the P.S.C. There is no rule or order mandating that the candidate should be given a further chance to join duty. It is further pointed out that, the Government never granted extension of time and the claim made in her representation was contrary to the real facts. It is also pointed out that, even after the expiry of the alleged extension of time for three months, she has failed to join duty. She applied twice for further extension of time for three months each time. The learned counsel for the first respondent/petitioner supported the order of the learned Single Judge. Though she was willing to join duty, she was not given a chance and the vacancy was reported to the P.S.C. on the premise that the candidate did not join duty. The same was illegal and the learned Single Judge has rightly directed the respondents to permit the petitioner to join duty, it is submitted. 4. Going by the Circular dated 22.11.1994, which govern the extension of time, the appointing authority can grant W.A. No.1755 of 2007 - 12 - 45 days time for joining duty. Thereafter, only the Government can grant time. For that, the application for extension of time should be routed through the appointing authority. Further, the grounds available to the Government for extension of time are - (i) the candidate is in the midst of any educational course, and (ii) the candidate is undergoing any training. In such circumstances, to enable the candidate to complete the course or to complete the training, extension of time can be granted. Going by the above circular, we notice that the respondent/petitioner has not applied for extension of time through the appointing authority. Further, the grounds raised, which we have already extracted above from her representation, are not the grounds available under the aforementioned Circular governing extension of time. The claim of the respondent/ petitioner, that, she has been granted three months' time for joining duty from 14.6.1999 based on her representation (Ext.P5) is untenable. The only proof in support of that claim is Ext.P16, which is only an acknowledgement card. She herself in her later representations has stated that Minister's W.A. No.1755 of 2007 - 13 - office has acknowledged her representation. It cannot be taken as grant of her request for extension of time. Further, when the respondents asserted that there is no such order, the petitioner ought to have produced the order by which extension has been granted. The respondents cannot be called upon to produce evidence to prove the non-existence of something. Further, even assuming that she was granted time for three months, she did not join duty within the three months' time. She further applied for three months' extension of time in September, 1999. The same was not granted. Again she applied for extension of time in December, 1999. That was also not granted. Finally, she has come forward expressing her willingness to join duty in April, 2000. In view of the above position, the claim of the respondent/petitioner for joining duty was plainly untenable and could not have been granted. If a candidate does not join duty, she need not be given a further notice to join duty. We do not find any such requirement under the Rules or in the relevant Circulars. Without any permission, admittedly she stayed away for nine months from joining duty W.A. No.1755 of 2007 - 14 - on untenable grounds. Even if any decision of the appointing authority is vitiated, for violation of principles of natural justice, the normal course open was to remit the matter. In this case, since, undisputedly the respondent failed to join duty for nine months without permission, the remand would be a futile exercise. In view of the above position, we find that learned Single Judge ought not have interfered with the action of the respondents. In the result, the judgment under appeal is reversed and the Original Petition is dismissed. The Writ Appeal is allowed as above. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy) P.S. TO JUDGE.