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.
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W.P.(C). No.29445/2008-E
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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).
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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
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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
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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
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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
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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.)
ms