High Court Kerala High Court

Pradeepkumar.K.N. vs State Of Kerala on 21 January, 2009

Kerala High Court
Pradeepkumar.K.N. vs State Of Kerala on 21 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 29445 of 2008(E)


1. PRADEEPKUMAR.K.N., S/O.K.P.GOPALAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. KERALA PUBLIC SERVICE COMMISSION,

3. THE DISTRICT MEDICAL OFFICER,

4. THE DISTRICT OFFICER, KERALA PUBLIC

5. THE DIRECTOR OF HEALTH SERVICES,

6. THE DISTRICT MEDICAL OFFICER,

                For Petitioner  :SRI.KALEESWARAM RAJ

                For Respondent  :SRI.ALEXANDER THOMAS,SC,KPSC

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :21/01/2009

 O R D E R
                      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
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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
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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
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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
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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
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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.)

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