The Kerala Public Service ... vs Mohammed Anwar
2022 Latest Caselaw 6238 Ker

                     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

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

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

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

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