IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 WP(C).No. 29445 of 2008(E) -------------------------------------- PETITIONER(S): ------------------------- PRADEEPKUMAR.K.N., S/O.K.P.GOPALAN, SAIKRIPA, MOOZHIKKARA, THALASSERY, KANNUR DISTRICT BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER, KASARAGOD. 4. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KASARAGOD. 5. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 6. THE DISTRICT MEDICAL OFFICER, KANNUR. ADV. MR.ALEXANDER THOMAS,SC,KPSC FOR R2 & R4 BY R1,3,5 & 6 GOVERNMENT PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.29445/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ADMISSION TICKET . P2:- COPY OF THE MEMO DT. 3.4.2006 ISSUED BY THE 4TH RESPONDENT. P3:- COPY OF THE ORDER DT. 3.1.01 ISSUED BY THE DMO, KANNUR. P4:- COPY OF THE CERTIFICATE DT. 11.7.03 ISSUED BY THE MEDICAL OFFICER, PHC, KANCHAR. P5:- COPY OF THE CERTIFICATE ISSUED BY MEDICAL OFFICER , PHC, PINARAYI. P6:- COPY OF THE LETTER DT. 9.1.08 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. P7:- COPY OF THE LETTER DT. 9.6.08 ISSUED BY THE DMO KANNUR. P8:- COPY OF THE CERTIFICATE. P9:- COPY OF THE NOTIFICATION DT. 31.12.05. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.29445/2008-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 21st day of January, 2009 J U D G M E N T The petitioner is aggrieved by Ext.P6 proceedings of the Public Service Commission by which it was informed to him that his name cannot be included in the rank list prepared for the post of Junior Health Inspector Grade-II, Kasaragod District. 2. Ext.P9 is the notification issued by the P.S.C inviting application for the post of Junior Health Inspector Grade-II. Under clause (6) of the notification, it is provided that the candidate should have 18 years of age as on 01/01/2005 and should not be above 35 years of age as on that day. There are two clauses by which relaxation is allowable under note 2; one is relaxation of three years for a candidate belonging to backward community and the other is under sub-clause (v) which is in the following terms:- Persons who have obtained provisional employment under Rule 9a(i) of Part-II KSR in the Government service having not less than one year service are entitled for relaxation of age upto the period of total service rendered by them (whether they are continuing in service or not). W.P.(C) No.29445/2008 -:2:- 3. In this case, the petitioner has rendered provisional service between 22/01/2001 to 31/10/2002 as Junior Health Inspector Grade-II. This is certified by the District Medical Officer, Kannur, which is produced as Ext.P4. After certifying the details regarding his tenure, in the concluding portion, it is stated that he is employed through the Employment Service from open market after obtaining a non-availability certificate from Local Employment Exchange/District without reference to Government Public Service Commissioner or the Employment Service. 4. Apparently, after considering the above certification, the Commission took the stand that the petitioner was not appointed through employment exchange and he was appointed through open market, and this resulted in passing the impugned order. Before this Court, the petitioner has produced Ext.P3, order of appointment, issued by the District Medical Officer, Kannur dated 03/01/2001. He is Serial No.2 therein. The opening paragraph itself shows that the candidates have been appointed temporarily as Junior Health Inspector Grade-II in the scale of pay of Rs.4000-6090/- under Rule 9 (a)(i) of KS & SSR for a period of one year or till regular hands join duty, whichever is earlier. Therefore, it is clear that the title to the office which was held by the petitioner by way of a temporary W.P.(C) No.29445/2008 -:3:- appointment can be traced from Ext.P3. If that be so, there cannot be any doubt that he had secured provisional employment through employment exchange under Rule 9(a)(i) of KS & SSR. Apparently, in Ext.P4, when the certificate was issued, an error has crept into it to the effect that he was appointed from “open market”, which is patently wrong. 5. The question is whether in such circumstances, the wrong committed by the certifying officer will be fatal to the petitioner. There cannot be any doubt that such a document which contains a completely wrong certification should not adversely affect the chance of the person getting the appointment. 6. The learned Standing Counsel for the P.S.C submitted that Ext.P3 was not placed for consideration before the P.S.C by the petitioner. It is also stated that the candidate is obliged under general conditions to place all relevant documents at the relevant time. 7. The learned counsel for the petitioner submitted that what was directed to be produced is discharge certificate and, therefore, there was no opportunity for the petitioner to produce Ext.P3 and if he was in any doubt that Ext.P4 will result in adverse orders against him, he would have produced it. Then, it is also pointed out that W.P.(C) No.29445/2008 -:4:- when Ext.P3 was tendered it was not accepted. Be that as it may in the light of the clear picture emerging from a reading of Ext.P3, there cannot be any doubt in the matter now. 8. This Court by an interim order dated 05/12/2008, directed the appointing authority to file an affidavit as to whether the petitioner was appointed as Junior Health Inspector Grade-II through the Employment Exchange under Rule 9(a)(i) Part II of the KS & SSR and had served as Junior Health Inspector Grade-II in the Primary Health Centre, Kanichar during the period from 22/01/2001 to 31/10/2002 and in the Primary Health Centre, Pinarayi from 10/10/1994 to 23/06/1995. Pursuant to the said interim order, the sixth respondent has filed an affidavit. It is made clear in paragraph (3) of the affidavit that he is one of the candidates sponsored by the District Employment Officer, Kannur vide that office order No.C1-784- 794/99 dated 03/10/2000 and 06/10/2000 and he was appointed by that office at Primary Health Centre, Kanichar as per order No.A2/18150/99 dated 03/01/2001 as Junior Health Inspector Grade- II in the scale of pay of 4000-6090 under Rule 9(a)(i) of Part II KS & SSR. The copy of the order dated 03/01/2001 is the one produced by the petitioner as Ext.P3. Therefore, there cannot be any doubt that the petitioner had been working on a temporary basis as Junior W.P.(C) No.29445/2008 -:5:- Health Inspector pursuant to the order of appointment (Ext.P3). Hence, whatever doubt regarding the discharge certificate was there, stands cleared. 9. The learned counsel for the petitioner relied upon the decision of the Apex Court in Mohd.Yunus Khan v. UP Power Corporation Ltd. and others [(2009) 1 SCC 80] wherein while considering the question whether a mistake committed by the employer as regards the date of birth could act against the employee. It was held that the mistake ought to have been rectified. 10. In that view of the matter, the view taken in Ext.P6 that the appointment secured by the petitioner at Primary Health Centre, Kanichar from 22/01/2001 to 31/10/2002 was not through the Employment Exchange but on contract basis, cannot be supported. At any rate, herein, it is obvious that an error had occurred in Ext.P4 certification. It cannot be taken as fatal to the claim raised by the petitioner for relaxation of age by counting the said period. Hence, Ext.P6 is quashed. 11. It is declared that the period during which the petitioner had been working as Junior Health Inspector Grade-II between 22/01/2001 to 31/10/2002 shall be counted for considering relaxation of age as specified under Ext.P9 notification. He should be granted W.P.(C) No.29445/2008 -:6:- the benefit accordingly. The Commission will issue orders by including the petitioner in the rank list in the appropriate place. 12. It is made clear that if any person who is below him in the rank list has already been advised, his right will not be affected by the inclusion of the petitioner in the list. It is further directed that the petitioner may be advised for appointment as and when the vacancies are reported. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms