Kerala High Court
The Kerala Public Service ... vs Dr.Shalmiya.K.I on 11 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
OP(KAT) NO. 153 OF 2021
AGAINST THE ORDER/JUDGMENT IN OA (EKM) 928/2020 OF KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM
PETITIONER/S:
THE KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY THE SECRETARY, THULASI HILLS, PALACE
P.O., PATTOM, THIRUVANANTHAPURAM-695 004, KERALA
BY ADV SHRI.P.C.SASIDHARAN, SC, KPSC
RESPONDENT/S:
1 DR.SHALMIYA.K.I.
AGED 33 YEARS
WIFE OF SR.ABDUL RASHEEM.P.T., RESIDING AT
KARUKAPPADATH HOUSE, BEHIND SAINIK CENTRE, POOTHOLE
P.O., THRISSUR, KERALA-680 004, THRISSUR, KERALA-680
004,
2 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND
FAMILY WELFARE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001, KERALA
3 THE DIRECTOR ,
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM-695 011, KERALA
4 ADDL. R4 DR.SARANA GEORGE
(SOUGHT TO BE IMPLEADED)
5 ADDL. DR.AMARNATH.V
(SOUGHT TO BE IMPLEADED)
6 DR.ABDUL SALAM
SOUGHT TO BE IMPLEADED
BY ADVS.
K.RAMAKUMAR (SR.)
S.M.PRASANTH
T.RAMPRASAD UNNI
G.RENJITH
R.S.ASWINI SANKAR
Writ Appeal No.153/2021
2
T.H.ARAVIND
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Writ Appeal No.153/2021
3
ALEXANDER THOMAS & A. BADHARUDEEN, JJ.
===============================================
OP(KAT)No.153/2021
(Arising out of the order of the Kerala Administrative Tribunal in O.A.(EKM)
No.928/2020 dated 3.2.2021)
===============================================
Dated this the 11th day of August, 2021
JUDGMENT
Alexander Thomas, J.
The Kerala Administrative Tribunal as per the impugned
Ext.P6 final order dated 3.2.2021 in O.A.(EKM) No.928/2020
filed by R1 herein has directed that the vacancy in question (which
according to the Kerala Public Service Commission is to be set
apart for advice and appointment of physically disabled
candidates) should be utilised for advice from the present
Annexure A1 rank list and that advice should be made as against
the said vacancy etc. The Tribunal has directed as per impugned
Ext.P6 final order that advice memo shall be issued by the Public
Service Commission as against the said vacancy from amongst the
candidate included in Annexure A1 rank list etc. The Public
Service Commission has taken the specific stand that going by the
provisions contained in Disabilities Act, the said vacancy in
question has to be allotted for advice and appointment of
Writ Appeal No.153/2021
physically disabled candidates and that since no physically
disabled candidate is included in the present rank list, the said
vacancy will have to be carried forward in accordance with the
provisions contained in Section 34 of the said Central Act for
advice and appointment of eligible physically disabled candidates
in the next recruitment year. It appears that the Tribunal has
proceeded on the premise that even as per the stand of the PSC, no
physically disabled candidate is now available in the rank list, the
said vacancy could be utilised for general recruitment of
candidates included in Annexure A1 rank list. While admitting this
original petition, we have issued an interim order staying the
operation and enforcement of impugned Ext.P6 final order dated
3.2.2021 in O.A.(EKM) No.928/2020.
2. Today when the matter has been taken up for
consideration, the learned Standing Counsel for the PSC has
submitted on the basis of instructions that subsequently yet
another substantive vacancy was reported by the appointing
authority to the PSC in the post of Assistant Professor in Oral
Medicine & Radiology in Medical Education Department and that
since original applicant/R1 herein is the next eligible candidate to
Writ Appeal No.153/2021
be advised, the applicant has already been advised by the PSC for
appointment as Assistant Professor in Oral Medicine & Radiology.
3. The above said factual submission made on behalf of
the PSC has not been in any manner rebutted. Since the original
applicant has already been advised for appointment, as against
another substantive vacancy, the dispute between the PSC and the
original applicant as to whether or not the other vacancy should be
utilised for advice and appointment of physically disabled
candidate or candidate included in Annexure A1 rank list by way of
general recruitment has almost become otiose. Accordingly,
without getting into the merits of the matter in any manner, we set
aside impugned Ext.P6 final order dated 3.2.2021 rendered by the
Tribunal in O.A.(EKM) No.928/2020. However, all the issues
raised in the said OA including the issue as to whether the said
vacancy in question referred to in Ext.P6 should be utilised for
advice and appointment of physically disabled candidate are left
open to be raised and decided in other appropriate proceedings in
the manner in law. It is also brought by notice that the Tribunal
has also rendered final order dated 18.3.2021 in the said OA
No.1517/2020 filed by the very same original applicant before the
Writ Appeal No.153/2021
KAT, Thiruvananthapuram and the said final order reads as
follows:
"Applicant, a candidate included in the ranked list for the post of Assistant
Professor in Oral Medicine and Radiology (Category No. 114/2016) has
filed this Original Application seeking directions to third respondent to
report all the vacancies to the Public Service Commission to be advised
from Annexure A1 ranked list. The applicant submits that as per Annexure
A16 order dated 19.12.2020, the first respondent has sanctioned additional
posts in the cadre of Assistant Professor in different subjects including
Oral Medicine and Radiology with effect from 18.9.2020. Since Annexure
A1 ranked list was valid upto 9.10.2020, the vacancy that arose with effect
from 18.9.2020 has to be filled up from Annexure A1 ranked list. She seeks
a direction to report the vacancy to the PSC and to effect advice against
the same.
2. The learned Standing Counsel for the PSC submits that one
substantive vacancy of Assistant Professor in Oral Medicine and
Radiology has already been reported and that advice will be effected to the
same from Annexure A1 ranked list. The commission shall expedite the
same and issue advice within three weeks from the date of receipt of a
copy of this order."
With these observations and directions, this original petition
stands disposed of.
sd/
ALEXANDER THOMAS, JUDGE
sd
A. BADHARUDEEN, JUDGE
jm/
Writ Appeal No.153/2021
APPENDIX OF OP(KAT) 153/2021
PETITIONER EXHIBITS
ANNEXURE A1 TRUE COPY OF THE NOTIFICATION CONTAINING THE
RANKED LIST PUBLISHED BY THE KERALA PUBLIC
SERVICE COMMISSION FOR THE POST OF ASSISTANT
PROFESSOR IN ORAL MEDICINE AND RADIOLOGY
ANNEXURE A2 TRUE COPY OF THE ORDER DATED 14.10.2019 IN OA
NO.2036 OF 2019 ONT HE FILE OF THIS HON'BLE
TRIBUNAL
ANNEXURE A3 TRUE COPY OF THE ORDER NO.306/B1/2016/H & FWD
DATED 26.10.2019 ISSUED BY R1
ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED
11.02.2020 SUBMITTED BY THE APPLICANT BEFORE
THE SECRETARY TO GOVERNMENT, SOCIAL JUSTICE
DEPARTMENT, GOVT. OF KERALA
Exhibit P2 TRUE COPY OF THE MA. (EKM) NO.1157/2020 DATED
16.8.2020
ANNEXURE A5 TRUE COPY OF THE G.O(MS) NO.367/2020/SWD
DATED 07.08.2020 ISSUED BY R1
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED
12.10.2020 FILED BY THE COMMISSION
ANNEXURE-R3(A) TRUE COPY OF THE LETTER DATED 17.09.2020
Exhibit P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT
DATED 19.11.2020
Exhibit P5 TRUE COPY OF THE M.A.NO.1750/2020
ON16.11.2020
ANNEXURE-A6 TRUE COPY OF THE COMMUNICATION
NO.D1/413/2019/SWD DATED 22.1.2020
Exhibit P6 TRUE COPY OF THE ORDER DATED 3.2.2021 IN OA
(EKM) NO.928/2020
