IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 13296 of 2006(G)
1. HASEENA.T.A,
... Petitioner
Vs
1. THE KERALA PUBLIC SERVICE COMMISSION,
... Respondent
2. THE DISTRICT OFFICER,
For Petitioner :SRI.R.RENJITH
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice KURIAN JOSEPH
Dated :15/10/2008
O R D E R
"C.R."
KURIAN JOSEPH, J.
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W.P(C) No.13296 of 2006
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Dated this the 15th day of October, 2008
JUDGMENT
Whether the cancellation of an advice by the Public Service
Commission made against the reservation turn will forfeit the
claim of a candidate for advice against the open competition turn
is the crucial question arising for consideration in this case.
Petitioner is serial No.817 in the ranked list published by the
Public Service Commission for appointment to the post of Last
Grade Servants in various departments in Ernakulam District.
The ranked list was published on 29-1-2004. She was advised
for appointment to the post in the reservation turn of Muslim in
the Judicial Department. Ext.P1 is the advice memo dated 23-5-
2005. It is specifically noted in the advice memo that the
appointment is against the reservation turn. Accordingly the
District Judge, Ernakulam, the appointing authority, issued Ext.P2
proceedings appointing the petitioner as Peon in the Additional
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District Court, Ernakulam. However, the petitioner was not
permitted to join duty on the ground that she had not produced
the original of the Non Creamy Layer Certificate. According to
the petitioner the same had already been produced before
another authority and she could not produce the original within
the permitted time. Therefore, she requested the appointing
authority to intimate the Public Service Commission that the
petitioner could not join duty in the reservation turn owing to the
non-production of the original of the Non Creamy Layer
Certificate. Thereafter the petitioner made Ext.P4 representation
dated 16-8-2005 requesting for appointment against the open
competition turn (general merit). In the meanwhile by
proceedings dated 18-8-2005 the appointing authority cancelled
the appointment since the petitioner could not produce the
original of the Non Creamy Layer Certificate. Subsequently the
petitioner was issued Ext.P6 show cause notice by the Public
Service Commission requesting the petitioner to explain as to
why the petitioner did not produce the original of the Non Creamy
Layer Certificate before the appointing authority. Petitioner
submitted Ext.P7 reply stating that the petitioner had already
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produced the original of the Non Creamy Layer Certificate before
the District Officer of the Public Service Commission at Thrissur
and hence she could not produce the same before the appointing
authority. Petitioner also prayed in Ext.P7 that she, being 817 in
the ranked list, may be advised for appointment against the
open competition (general merit) turn. Without considering the
said request, the Commission issued Ext.P8 memo cancelling the
advice issued to the petitioner against the Muslim reservation
turn stating only that her explanation for non-production of the
original of the Non Creamy Layer Certificate before the
appointing authority was not satisfactory. She was not advised
in the open competition turn. Thus aggrieved, the writ petition is
filed contending that even if the petitioner is not considered
against the Muslim reservation turn, she is entitled to be
considered against her turn in the general merit.
2. The stand taken by the Public Service Commission is
that the request of the petitioner for appointment in the general
merit cannot be considered since her advice against the Muslim
turn had already been cancelled. It is further submitted that
once a candidate is advised from a ranked list the name stands
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deleted from the ranked list. However, learned counsel for the
petitioner submits that the advice that was cancelled was an
advice against a reservation turn and if for some reason the
petitioner could not enjoy the benefit of the reservation turn, that
by itself will not forfeit the claim of the petitioner for being
considered against the open competition turn.
3. Rule 18(1) of the Kerala Public Service Commission
Rules of Procedure is the relevant Rule which reads as follows:-
“18(i) The advice of a candidate made by the
Commission for recruitment to any post in the Service
who does not join duty in the post in pursuance of the
order of appointment shall, unless the Commission are
satisfied that the order has not been sent to the
candidate by registered post with acknowledgment due,
be cancelled and his name deleted from the ranked list.
(ii) Any candidate whose name has been included
in a ranked list prepared by the Commission may
relinquish his claim for appointment in writing giving his
full address and signature attested by an officer not
below the rank of a Tahsildar under his seal, on or before
the date of receipt of requisition for advice against which
he/she is to be advised. The Commission shall
thereupon remove his name from the ranked list and
advise another candidate according to rules. The
candidate whose name has been so removed from the
ranked list shall be informed of such removal by the
Commission.”
The prescription under the Rule is that once a candidate is
advised for appointment and if that candidate does not join duty
in the post pursuant to the order of appointment, the advice will
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be cancelled and the name of the candidate will be removed from
the ranked list. But the crucial question is whether the
cancellation of an advice made against the reservation turn will
forfeit the claim of a candidate for advice against the open
competition turn. A literal reading of the provision, and as
contended by Sri.Alexander Thomas, learned Legal Retainer to
the Kerala Public Service Commission, would indicate that once a
candidate is advised from a ranked list, the name of the
candidate also will be removed from the ranked list. It is all the
more so when once the advice is cancelled. But the undisputed
factual position in this case is that the petitioner is rank No.817
in the main ranked list. She was advised as per Ext.P1 only
pursuant to her claim for reservation in the OBC Muslim quota.
That claim is permissible only if the candidate does not belong to
the Creamy Layer. It appears that the petitioner had already
produced the original of the Non Creamy Layer Certificate before
the Public Service Commission and based on that only she was
advised for appointment against the Muslim turn. However, she
could not produce the original of the Non Creamy Layer
Certificate before the appointing authority within the permitted
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time and for that reason only, her appointment was cancelled by
the appointing authority. Consequently the advice was also
cancelled by the Public Service Commission. But it has to be
seen that the advice that is cancelled is only an advice against a
reservation turn. Merely because a candidate could not conform
to the requirements for advice and appointment against a
reservation turn, that by itself will not and cannot forfeit his claim
for advice and appointment against the open competition turn. It
is significant to note that even in Ext.P8 memo what the
Commission had intimated the petitioner was only regarding the
cancellation of Ext.P1 advice. That advice was only against the
reservation turn. If as a matter of fact the petitioner was entitled
to be considered for advice in case her turn arises in ‘the general
merit rank’, and in case the petitioner was available for advice
and appointment she should have been advised against that open
competition turn.
4. Ext.P10 circular issued by the Commission itself would
indicate that in case “….. candidates fail to produce the Non-
Creamy Layer Certificate, the benefit of community will be denied
to them and they will be considered for advice only against open
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competition turns if included in the main list ….” In this case the
petitioner had produced the original before the Public Service
Commission and hence only she was advised for appointment
against the Muslim turn. But she could not produce the same
before the appointing authority and hence her appointment was
cancelled. Therefore, she should have been considered against
her open competition turn as stated in Ext.P10 circular issued by
the Public Service Commission.
5. The Kerala Public Service Rules of Procedure came into
force on 16-8-1976. The issue of Creamy Layer was not
prevalent at that time. Therefore, the Commission did not have
an opportunity to provide for the contingencies pertaining to the
Creamy Layer as far as communities included in the OBC list are
concerned. Rule 18(i) of the Kerala Public Service Commission
Rules of Procedure will hence have to be read down to the effect
that the advice of a candidate against a reservation turn will be
cancelled in case he does not join duty pursuant to the
appointment order as per the advice and such candidate
thereafter will be considered only against his open competition
turn, in case he is ranked in the main list.
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6. In this case, according to the petitioner, the additional
3rd respondent is the person who has been advised against rank
No.818. Despite service of notice there is no appearance. Be
that as it may, since the petitioner is entitled for advice against
the open competition turn 817, there will be a direction to the
respondents to advise the petitioner for appointment against the
turn 817 from the ranked list of Last Grade Servants in various
departments in Ernakulam District published on 29-1-2004. This
shall be done within a period of two months from the date of
receipt of a copy of this judgment.
The writ petition is disposed of as above.
(KURIAN JOSEPH, JUDGE)
ahg.
KURIAN JOSEPH, J.
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W.P(C).No.13296 of 2006
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JUDGMENT
15th October, 2008