Kerala High Court
Binumon K.P, S/O Purushan .K.V vs Kerala Public Service Commission on 21 November, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
OP(KAT)No.293 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA, 1946
OP(KAT) NO. 293 OF 2024
AGAINST THE JUDGMENT DATED 14.03.2024 IN OA NO.45 OF 2021
OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
1 BINUMON K.P, S/O PURUSHAN .K.V,
AGED 39 YEARS
DRIVER GRADE II (HG),
BLOCK DEVELOPMENT OFFICE,
CHAMPAKKULAM, ALAPPUZHA 688505,
RESIDING AT KANDANATTUVELI,
CHERTHALA SOUTH P.O., ALAPPUZHA, PIN - 688539
BY ADVS.
KALEESWARAM RAJ
THULASI K. RAJ
CHINNU MARIA ANTONY
APARNA NARAYAN MENON
RESPONDENT/RESPONDENTS:
1 KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY THE SECRETARY,
KERALA PUBLIC SERVICE COMMISSION,
PATTOM, THIRUVANANTHAPURAM, PIN - 695004
OP(KAT)No.293 of 2024
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2 DISTRICT OFFICER,
KERALA PUBLIC SERVICE COMMISSION,
DISTRICT OFFICE,
ALAPPUZHA, PIN - 688012
BY SR.GOVT. PLEADER SMT.NISHA BOSE
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 11.11.2024, THE COURT ON 21.11.2024 DELIVERED THE
FOLLOWING:
OP(KAT)No.293 of 2024
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CR
JUDGMENT
P.Krishna Kumar, J.
The petitioner challenges the order passed by the
Kerala Administrative Tribunal in O.A.No. 45 of 2021,
in which the Tribunal rejected the petitioner's claim
that he is entitled to be included in Annexure A6, the
ranked list prepared by the Kerala Public Service
Commission/first respondent, for the post of Lower
Division Typist, through by transfer method.
2. While working as Driver Grade II (HG) in the
Block Development Office, the petitioner applied for
the post of L.D.Typist (recruitment by transfer) in
various departments, pursuant to the gazette
notification published on 29/12/2018. As per the
notification, applications were invited from low-paid
employees in the Kerala Government Subordinate Service
for appointment to the above post. The scale of pay for
the post was Rs.19000-43600. At the time of submission
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of application, as it appears from Annexure A3 service
certificate issued in favour of the petitioner, his
scale of pay was Rs.18000-41500. As per Annexure A1
notification, the last date to apply was 30/01/2019.
3. The petitioner was excluded from Annexure A6
ranked list for the reason (as explained in Annexure
A7) that he was not eligible for recruitment through by
transfer method in view of note 2 of Rule 8(c) of Part
II of Kerala State & Subordinate Services Rules, 1958
(hereinafter referred to as 'KS & SSR'). The
respondents further explained the reason for the
exclusion of the petitioner from the said ranked list
through the reply statement submitted before the
Tribunal. According to them, as per Rule 2(13) of Part
I of KS & SSR, a person can be recruited by transfer
only if his appointment to the service is in accordance
with the orders issued or rules prescribed for
recruitment by transfer to the service. Applications
were invited only from low-paid employees and thus the
said eligibility for recruitment by transfer has to be
maintained until a candidate is finally appointed to
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the post. However, at the time of verification, it was
found that the petitioner was promoted to the post of
Driver Grade II (HG) with a scale of pay of Rs.20000-
45800. It is also contented by the respondents in the
reply statement that, by virtue of the provisions of
Rule 8 of KS & SSR, a candidate who applied for by
transfer appointment, if appointed to a post (having a
higher scale of pay) in another department, he is
entitled to be repatriated to his initial post (having
a lower scale of pay) from which he applied for by
transfer appointment, but if he cannot go back to the
original post as it carries a higher scale of pay, he
is not eligible for by transfer appointment.
4. Adv.Sri.Kaleshwaram Raj, the learned counsel for
the petitioner, assailed the order of the Tribunal
mainly on the ground that the eligibility or
qualification for appointment to a post is to be
examined with reference to the last date for receiving
the application unless and until the notification
prescribes otherwise. According to him, this elementary
principle was not acted upon by the Tribunal and hence,
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the petitioner is entitled to be included in Annexure
A6 ranked list. To support the said contention, the
learned counsel relied on the decisions in Ashok Kumar
Sharma & Ors. v. Chander Shekhar & Anr. [(1997) 4 SCC
18], Ashok Kumar Sonkar v. Union of India & Ors. [(2007)
4 SCC 54], Rekha Chaturvedi v. University of Rajasthan
[1993 Supp(3)SCC 168], A.P.Public Service Commission v.
B.Sarat Chandra [(1990) 2 SCC 669], Bhupinderpal Singh
v. State of Punjab [(2000) 5 SCC 262] and Divya v.
Union of India [(2024) 1 SCC 448].
5. It is further argued that if the contentions put
forward by the Public Service Commission are accepted,
an employer can very well defeat the rights of an
eligible candidate by delaying the process of
appointment, which will result in disastrous
consequences. It is also contended that the relevant
special rules do not contain a provision like Rule 187
of the Co-operative Societies Rules, wherein it is
provided that the stipulation for reservation in the
vacancies of apex societies to the employees of a
member society shall be applicable to those employees
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who should be in the service of the member society not
only on the date of application but also on the date of
appointment.
6. Adv.Sri.P.C.Sasidharan, the learned Standing
Counsel for the Kerala Public Service Commission,
defended the impugned order relying on the provisions
contained in Rule 2(13) of Part I of KS & SSR. The
learned counsel submitted that applications were
invited from low-paid employees and that eligibility
condition ought to have been maintained until the
appointment is completed, unlike in the case of
appointment by direct recruitment, wherein the crucial
point of time would be the date of notification
inviting application by the PSC.
7. In order to appreciate the contentions advanced
by the learned counsel appearing for the petitioner, we
have extensively considered the decisions cited by him.
In Ashok Kumar Sharma's case (supra), the question
under consideration was, when a number of persons
applied for appointment to the post of Junior Engineer,
which requires a pass in B.E.(Civil) Examination, 33
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persons had not passed the B.E. examination before the
last date fixed for the submission of application, but
they were permitted to participate in the interview
pursuant to the directions of the Government and when
this was challenged, the Honourable Supreme Court held
that persons who acquire the prescribed qualification
subsequent to such cut-off date could not be considered
at all, even on the ground that the recruiting
authority might get the best talent available. In Ashok
Kumar Sonkar's case and Rekha Chaturvedi's case (supra)
as well, the factual situation was identical.
8. In A.P.Public Service Commission's case (supra),
a candidate who did not complete the minimum age
prescribed for the selection claimed that the
completion of the minimum age should be determined on
the basis of the date of preparation of the selection
list and not any date anterior to it. In Bhupinderpal
Singh's case (supra) as well the question under
consideration was related to the upper age limit.
9. In Divya's case (supra), the Honourable Supreme
Court was considering the eligibility of economically
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weaker section category candidates for the Civil
Service Examination. The Honourable Court noted that as
per the official memorandum issued by the Department of
Personnel and Training, the benefit of reservation
under the EWS category would be available only upon
possession of an Income and Asset Certificate(I&AC)
issued by a competent authority and the official
memorandum further specifies the crucial date of
submission of I&AC as the closing date of receipt of
application. The court further noted that Rule 27(3) of
the Civil Service Examination Rules, 2022 clearly
stated that a candidate will be eligible to get the
benefit of economically weaker section reservation only
if the candidate meets the criteria issued by the
Central Government and is in possession of the
requisite I&AC based on the income for the relevant
financial year (2020-2021). The petitioner in the said
case claimed that she had the EWS certificate for the
year 2019-2020, but she could not obtain the
certificate for the financial year 2020-2021 due to the
COVID pandemic crisis and thus she initially uploaded
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the certificate for the available period, and
subsequently, she produced the certificate for certain
other periods. Later, she was informed by the UPSC that
her candidature had been converted to the general
category from the EWS category. She challenged the said
decision by filing a writ petition. In the said
circumstances, after adverting to the relevant rules
under the Civil Service Examination Rules, 2022, the
Honourable Supreme Court held that "it is also very
well settled that if there are relevant rules which
prescribe the date on which the eligibility should be
possessed, those rules will prevail. In the absence of
rules or any other date prescribed in the
prospectus/advertisement for determining the
eligibility, there is a judicial chorus holding that it
would be the last date for submission of the
application."
10. It is true that the Honourable Supreme Court
has laid down that the eligibility of a candidate has
to be judged with reference to the last date fixed for
submitting the application unless there is a contrary
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rule or a provision in the notification itself.
However, in all those decisions, what was in question
was the propriety of acquiring certain qualifications
which are necessary for the appointment (or for
determining eligibility), after the last date fixed in
the notification. In that circumstance, the Apex Court
held that if a qualification is prescribed, that shall
be obtained before the last date fixed for submitting
the application, and the subsequent acquisition of the
qualification has no relevance. Those are also cases in
which appointment by direct recruitment was in question
based on the acquisition of some essential
qualifications subsequent to the last date fixed. The
ratio of those cases centres around the aforementioned
factual circumstances and has no relevance in the
present context, wherein the eligibility for
recruitment by transfer method is in question.
11. The method of recruitment by transfer is
entirely a different process. As a general rule, the
method provides an opportunity for change of post or
category to low-paid employees or persons in a pay
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scale not higher than the post to which the
applications are invited. Through by transfer
appointment, existing employees in one post/category
will be appointed to another post/category, which is
not in the direct line of promotion, but it may carry a
higher or identical scale of pay, and not lesser scale
of pay.
12. Rule 2(13) of Part I of KS & SSR specifically
provides that a candidate is said to be recruited by
transfer to a service if his appointment to the service
is in accordance with the orders issued or rules
prescribed for recruitment by transfer to the service,
subject to certain other conditions. When it was
explicitly stated in the notification that the
candidature is expected from persons holding low-paid
posts in the Government Services, the said
qualification of the candidate is certainly expected to
be of the same nature until he is finally appointed to
the post, as the appointment by transfer does not
envisage appointment of a person with a higher scale of
pay.
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13. As rightly pointed out by the learned Standing
Counsel for the Public Service Commission, when the
term used in rule 2(13) is that a candidate is said to
be "recruited by transfer" to a service if his
"appointment to the service" is in accordance with the
orders issued or rules prescribed for recruitment by
transfer to the service, the condition prescribed in
the notification is to be scrupulously followed till
the appointment is effected. Clause 4 of Annexure A6
notification reads as follows:
"4. Method of appointment : Recruitment by
transfer (from persons holding low paid posts in the
Government Services)"
It is thus evident that the said recruitment by
transfer can be made from persons holding low paid
posts which is a concomitant element to be attached to
the employee till the appointment takes effect.
14. In this case, it is not disputed that the
petitioner had been promoted to Driver Grade II (HG)
with a scale of pay of Rs.20000-45800 which post
possesses a pay scale higher than that of a Lower
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Division Typist with a scale of pay Rs.19000-43600.
Therefore, the respondents rightly excluded the
petitioner from Annexure A6 ranked list and hence there
is no scope for any interference.
The original petition is dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
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APPENDIX OF OP(KAT) 293/2024
PETITIONER'S ANNEXURES
Annexure A1 TRUE COPY OF THE THE GAZETTE NOTIFICATION
DATED 29.12.2018 FOR THE POST OF LOWER
DIVISION TYPIST (BY TRANSFER) (CATEGORY NO.
281/2018) ISSUED BY THE 1ST RESPONDENT
Annexure A2 TRUE COPY OF THE CERTIFICATE DATED
25.01.2019 ISSUED BY THE HEAD OF OFFICE
I.E., THE BLOCK DEVELOPMENT OFFICER,
CHAMPAKKULAM, ALAPPUZHA
Annexure A3 TRUE COPY OF THE SERVICE CERTIFICATE
BEARING NO. B/125/2019 DATED 18.01.2019
ISSUED BY THE BLOCK DEVELOPMENT OFFICER,
CHAMPAKKULAM, ALAPPUZHA.
Annexure A4 TRUE COPY OF THE SHORT LIST BEARING NO.
PL.NO. : 10/2020/DOA DATED 30.07.2020
PUBLISHED BY THE 2ND RESPONDENT FOR
SELECTION AND APPOINTMENT TO THE POST OF
LOWER DIVISION TYPIST (BY TRANSFER)
(CATEGORY NO. 281/2018) IN ALAPPUZHA
DISTRICT
Annexure A5 TRUE COPY OF THE SERVICE CERTIFICATE
BEARING NO.B/981/20 DATED 07.09.2020 ISSUED
BY THE BLOCK DEVELOPMENT OFFICER,
CHAMPAKKULAM, ALAPPUZHA.
Annexure A6 TRUE COPY OF THE RANKED LIST NO. 332/2020
DATED 10.11.2020 FOR THE POST OF LOWER
DIVISION TYPIST(BY TRANSFER) (CATEGORY NO,
281/2018) IN ALAPPUZHA DISTRICT.
Annexure A7 TRUE COPY OF THE LETTER NO. ASS3-
1/105/2020-KPSC-DOALP DATED 23.12.2020
ISSUED BY THE 2ND RESPONDENT
Exhibit P1 TRUE COPY OF THE MEMORANDUM OF
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Exhibit P2 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE 1ST AND 2ND RESPONDENTS IN OA
NO.45/2021.
Exhibit P3 TRUE COPY OF THE ORDER DATED 14.03.2024 IN
O.A. NO.45/2021 PASSED BY THE TRIBUNAL.
