IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
OP(KAT) NO. 94 OF 2022
AGAINST THE ORDER dated 30.11.2021 IN OA 611/2021 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/RESPONDENT NO.3:
THE KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY,PATTOM,THIRUVANANTHAPURAM,
PIN-695004,KERALA.
BY ADV SHRI.P.C.SASIDHARAN, SC, KPSC
RESPONDENTS/APPLICANT & RESPONDENT NOS.1 & 2:
1 MOHAMMED ANWAR,
AGED 30 YEARS,S/O.SUBAIRKUTTY,JOUHAR MANZIL,K.S.PURAM
P.O.,KARUNAGAPPALLY,KOLLAM,,KERALA-690 544,MOB:956547454.
2 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,HOME
DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695
001,KERALA.
3 THE DIRECTOR GENERAL,
FIRE AND RESCUE SERVICES,HEADQUARTERS,HOUSING BOARD
JUNCTION,THIRUVANANTHAPURAM-695 001.KERALA.
BY ADVS.
SRI. NANDAKUMAR P
SMT.AMRUTHA SANJEEV(K/001000/2016)
SRI.VIVEK VIJAYAKUMAR(K/1018/2016)
SMT.SHEMA ELIZABETH SCARIA(K/002354/2019)
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
:2:
OP(KAT).94 of 2022
JUDGMENT
A.K.Jayasankaran Nambiar, J.
This petition is filed by the Kerala Public Service Commission aggrieved by the order of the Kerala Administrative Tribunal (KAT) dated 30.11.2021 in O.A.No.611 of 2021. It is the case of the petitioner that the 3rd respondent in O.A.No.611 of 2021 had preferred the O.A before the Tribunal seeking a direction to the Public Service Commission to advice the applicant to the 7 th anticipated vacancy of Fireman Driver cum Pump Operator (Trainee), which arose on 01.11.2020 against the passed over turn MR XII 26M. The rank list prepared by the Public Service Commission in connection with the selection was published on 10.10.2019 and had a validity till 09.10.2020. In the ordinary circumstances, the vacancies reported within the validity period of the rank list had to be filled through advice of the candidates in the rank list. In the instant case, however, it was the case of the applicant before the Tribunal that inasmuch as there was a stay order in O.A (EKM).No.666/2018 and connected cases (produced as Ext.R1(a) that was in vogue from 18.12.2019 till 18.01.2021, when the said OA application was dismissed, staying further proceedings for the advice of candidates from the rank list in question, the first advice by the Public Service Commission came to be :3: OP(KAT).94 of 2022 issued only on 25.01.2021. It was the contention of the applicant in the OA, that inasmuch as the 7 th anticipated vacancy to the post arose on 01.11.2020, which was before 25.01.2021, the Public Service Commission ought to be directed to advice the name of the petitioner also to the said vacancy.
2. The Tribunal found force in the said contention of the applicant and proceeded to issue directions to the Public Service Commission to advice the applicant to the vacancy that arose on 01.11.2020. It is aggrieved by the said order of the Tribunal that the petitioner Public Service Commission is before us in this OP(KAT).
3. When the matter was taken up for consideration today, it is brought to our notice by the learned counsel that by judgment dated 03.11.2020 in OP(KAT).No.317 of 2020, a Division Bench of this Court had found that in almost identical circumstances, the date of approval of the communal rotation has to be taken as the date on which technically the PSC would have been in a position to advice the candidate. In particular, it was noted that if the interpretation as held by the Tribunal is upheld there was every chance of manipulation being done by delaying the dispatch of the advice by staff of the dispatch section of the Public Service Commission. This fear of misuse led the :4: OP(KAT).94 of 2022 Division Bench to hold that it would be safer to go by the date of approval of the communal rotation as a sure guide for determining the date on which the first advice from the list was made by the Public Service Commission.
Following the said decision of the Division Bench, we find that on the facts of the instant case, the communal rotation was finalised on 27.11.2019, and that date being prior to the date of expiry of the rank list, the latter date has to be taken as the outer terminal for determining the eligibility of the applicant for advice. We find, therefore, that the date of 01.11.2020 on which, the 7 th anticipated vacancy to the post arose, inasmuch as it falls after 09.10.2020, which is the date of expiry of the rank list, the order of the Tribunal cannot be legally sustained. Thus, following the judgment of the Division Bench referred above, the OP(KAT) is allowed by setting aside the order dated 30.11.2021 of the Kerala Administrative Tribunal in O.A.No.611 /2021 and dismissing the O.A.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE Sd/-
MOHAMMED NIAS C.P.
JUDGE mns :5: OP(KAT).94 of 2022 APPENDIX OF OP(KAT) 94/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE O.A.NO.611 OF 2021 WITH ITS ANNEXURES.
Annexure A1 TRUE COPY OF THE NOTIFICATION DATED 12.5.2017 UNDER CAT. NO.070/2017 ISSUED BY THE 3RD RESPONDENT.
Annexure A2 TRUE RELEVANT EXTRACT OF RANKED LIST N.540/2019/ER IX BROUGHT INTO EFFECT FROM 10.10.2019 ISSUED BY THE 3RD RESPONDENT.
Annexure A3 TRUE COPY OF APPOINTMENT CHART NO.RIC(1) 6353/19/GW DATED 25.1.2021.
Annexure A4 TRUE COPY OF THE QUERY DATED 23.1.2021 UNDER RTI ACT SUBMITTED BY JOUHAR TO THE STATE PUBLIC INFORMATION OFFICER ATTACHED TO THE 3RD RESPONDENT.
Annexure A5 TRUE COPY OF THE REPLY LETTER NO.IDS-
II(2)/506/2021/GW DATED 2.2.2021 SENT BY STATE PUBLIC INFORMATION OFFICER ATTACHED TO THE 3RD RESPONDENT.
Exhibit P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE COMMISSION.
Exhibit P3 TRUE COPY OF THE M.A. DATED 19.4.2021 :6: OP(KAT).94 of 2022 WITH ANNEXURE-MA1.
Annexure MA 1 TRUE COPY OF THE ORDER
NO.E2/11246/2016 DATED 16.4.2021
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED
30.11.2021 IN OA.NO.611 OF 2021
RESPONDENT EXHIBITS
Exhibit R1(a) TRUE COPY OF THE INTERIM ORDER DATED
18.12.2019 IN OA(EKM)666 OF 2018 AND
CON.CASES
Exhibit R1(b) TRUE COPY OF THE FINAL ORDER DATED
18.1.2021 IN OA(EKM)666 OF 2018 AND
CON.CASES
Exhibit R1(c) TRUE COPY OF APPOINTMENT CHART FOR
CATEGORY NO.070/2017
Exhibit R1(d) TRUE COPY OF INTERIM ORDER DATED
08.10.2020 IN O.A NO.1457 OF 2020
//TRUE COPY//
P.A TO JUDGE