Appointment by transfer to the post of Legal Assistant Grade-II in the Administrative Secretariat [Case Law]

Service Law - Public Service Commission - Appointment by transfer to the post of Legal Assistant Grade-II in the Administrative Secretariat.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.N.Ravindran & R.Narayana Pisharadi,JJ.

W.A. No.1685 of 2017

Dated this the 2nd day of March, 2018

AGAINST THE JUDGMENT DATED 6-7-2017 IN WP(C) 19238/2017 of HIGH COURT OF KERALA 

APPELLANT/PETITIONER

ANIL KUMAR G.S.

BY ADV.SRI.G.S.RAGHUNATH 

RESPONDENT/RESPONDENT/ADDL.RESPONDENTS

1. THE KERALA PUBLIC SERVICE COMMISSION K.P.S.C. PATTOM PALACE P.O., THIRUVANANTHAPURAM, PIN - 695004, REPRESENTED BY ITS SECRETARY.

2. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, LAW DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. AND 2 OTHERS

R1 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC ADDL.R2 BY SR.GOVERNMENT PLEADER SMT.K.R.DEEPA ADDL.R3 & R4 BY ADVS.SRI.GOPAKUMAR R.THALIYAL SRI.RAHUL RAJ 

JUDGMENT

P.N. Ravindran, J

The appellant is the unsuccessful petitioner in W.P(C) No.19238 of 2017 wherein he had challenged Ext.P7 show cause notice dated 30.5.2017 issued by the Kerala Public Service Commission (hereinafter referred to as “the Commission” for short) calling upon him to show cause why his name shall not be removed from Ext.P6 short list of candidates found provisionally eligible to be called for interview for appointment by transfer to the post of Legal Assistant Grade-II in the Administrative Secretariat. By judgment delivered on 06.7.2017 the learned single Judge dismissed the writ petition. The brief facts of the case are as follows: 

2. The appellant/petitioner entered service as Office Attendant Grade-II in the Kerala Legislature Secretariat on 25.8.2004. His probation in the category of Office Attendant Grade-II was declared satisfactorily completed with effect from 16.10.2009. He was later promoted to the category of Office Attendant Grade-I with effect from 05.01.2012. While he was thus continuing in service as Office Attendant Grade-I, the Commission invited applications from eligible persons for appointment to the post of Legal Assistant Grade-II in the Administrative Secretariat. The methods of appointment were (1) by direct recruitment (Category No.121/2013) from persons who possess a Degree in Law and have enrolled as Advocates and have completed three years of practice, (2) by transfer (Category No.122/2013) from among employees working in various Government departments and in this court who possess a Degree in Law and have completed three years of service and have not attained the age of 40 years, and (3) by transfer (Category No.123/2013) from among members of the Secretariat Subordinate Service, who possess a Degree in Law and have completed three years of service and have not attained the age of 50 years.

3. The notification inviting applications for appointment was published in the Kerala Gazette Extraordinary No.1351 dated 15.5.2013. Pursuant to the said notification, the appellant applied for appointment against Category Nos.122/2013 and 123/2013. By Ext.P2 letter dated 12.6.2014, the Commission invited him to appear for verification of the application submitted by him in respect of Category No.123/2013. He was also asked to produce a Service Certificate before 25.6.2013. He accordingly appeared before the Under Secretary, Kerala Public Service Commission and submitted the original of Ext.P3 Service Certificate. After verification of the application, he was called to appear for the written test (OMR test) held on 08.10.2015. It is relevant in this context to note that a similar verification was conducted in respect of his application for appointment against Category No.122/2013 as well. The written test (OMR test) held on 08.10.2015 was common for all the three categories. After the written test was conducted separate short lists of candidates found provisionally eligible to be called for interview were prepared in respect of all the three categories. The petitioner was included in Ext.P4 short list in respect of Category No.122/2013. He was however not included in the short list prepared for appointment under Category No.122/2013. This was for the reason that he did not secure the cut off marks.

4. It appears that after the short lists were published, one question was deleted from the question paper for the reason that all the answers provided in the answer key were incorrect. Thereupon, a fresh short list, evidenced by Ext.P6, was prepared for appointment to Category No.123/2013. In that short list also, the petitioner (Roll No.101248) found a place. It was mentioned in Ext.P6 that the candidates, whose register numbers are mentioned therein, are found provisionally eligible to be called for interview, subject to verification of original documents, for selection to the post of Legal Assistant Grade-II by transfer (Category No.123/2013). While matters stood thus, the Commission issued Ext.P7 show cause notice dated 30.5.2017, calling upon the petitioner to show cause why his name shall not be removed from Ext.P6 short list. It was alleged therein that he is not eligible to apply against Category No.122/2013. The appellant thereupon submitted Ext.P8 reply dated 03.6.2017 contending that he is eligible. He contended that the Legislature Secretariat is also a part of the Government Secretariat. He thereafter filed W.P.(C) No.19238 of 2017 in this court on 07.6.2017 challenging Ext.P7 notice and seeking the following reliefs: 

i. Call for the records leading to issuance of Ext.P7 order and quash the same, by issuing a writ of certiorari; 

ii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to permit the applicant to participate in interview for the post of Legal Assistant, Gr.II in the Law Department (Govt. Secretariat) under the category No.123/2013.

iii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to consider and dispose Ext.P8.

5. It is relevant in this context to note that though the interview for appointment to the post of Legal Assistant Grade-II was held during the period from 07.6.2017 to 09.6.2017, this court did not pass an interim order directing the petitioner to be provisionally interviewed. The petitioner had in the writ petition contended that employees of the Kerala Legislature Secretariat are also eligible to apply for appointment by transfer. The Commission resisted the writ petition contending, inter alia, that the petitioner is ineligible to apply for appointment against Category No.123/2013. The stand taken by the Commission was that employees of the Kerala Legislature Secretariat can apply only under Category No.122/2013 and not under Category No.123/2013. The Commission also contended that the petitioner did not secure the necessary cut off marks for inclusion in the short list for Category No.122/2013. The learned single Judge considered the rival contentions and dismissed the writ petition by judgment delivered on 06.7.2017. The petitioner has, aggrieved thereby, filed this writ appeal.

6. We heard Sri.G.S.Raghunath, learned counsel appearing for the appellant, Sri.P.C.Sasidharan, learned Standing Counsel appearing for the Kerala Public Service Commission, Sri. Gopakumar R.Thaliyal, learned counsel appearing for the applicants in I.A.No.64 of 2018 who seek impleadment as additional respondents 3 and 4 in the writ appeal and Smt.K.R.Deepa, learned Senior Government Pleader appearing for the State of Kerala. Sri.G.S.Raghunath, learned counsel appearing for the appellant submitted relying on Ext.P9 notification issued by the Commission, inviting applications for appointment to the post of Block Development Officer in the Rural Development Department, Ext.P10 proceedings dated 20.4.2017 issued by the Commissioner for Rural Development, Ext.P11 Government Order dated 27.12.1983 and Ext.P12 U.O. Note dated 16.7.1981, that all along, employees of the Legislature Secretariat have been treated as equal to employees of the Administrative Secretariat in the matter of appointment by transfer to various Government departments and therefore, the stand taken by the Commission in Ext.P7 show cause notice and in its counter affidavit is not tenable. Inviting our attention to Annexure V appointment chart produced along with I.A.No.1434 of 2017 in this appeal, learned counsel contended that employees of the Legislature Secretariat have been appointed by transfer as Confidential Assistants Grade-II in various departments, treating them as the employees of the State Government. Learned counsel further contended that in the light of the stipulations in Exts.P9 to P12 the Commission erred in issuing Ext.P7 show cause notice.

7. Per contra, Sri.P.C.Sasidharan, learned counsel appearing for the Commission, Smt.K.R.Deepa, learned Senior Government Pleader appearing for the State of Kerala and Sri.Gopakumar R. Thaliyal, learned counsel appearing for the additional respondents seeking impleadment, submitted that the appellant/petitioner can apply for appointment by transfer only under Category No.122/2013, that employees of the Administrative Secretariat alone are eligible to apply for appointment under Category No.123/2013 and therefore, the Commission was perfectly justified in issuing Ext.P7. Learned counsel for the Commission contended that though the appellant's application for appointment under Category No.122/2013 was considered, he was not short listed, for the reason that he did not secure 32.67 marks and above. Referring to the additional affidavit filed today, Sri.P.C.Sasidharan, learned counsel appearing for the Commission submitted that the petitioner was included in the short list in respect of Category No.123/2013 only for the reason that he had secured 8.67 marks and above, that he was not included in the short list for Category No.122/2013, for the reason that he had not secured 32.67 marks and above and therefore, he cannot contend that as he had appeared for the common OMR test held on 08.10.2015, based on his inclusion in the short list for Category No.123/2013, he should have been included in the short list for Category No.122/2013 as well.

8. We have considered the submissions made at the Bar by learned counsel appearing on both sides. We have also gone through the pleadings and the materials on record. It is clear from the notification inviting applications that there were two methods of recruitment, one by direct recruitment and the other by transfer. The transfer appointment is from two different sources. The petitioner is admittedly not eligible to apply for appointment by direct recruitment (Category No.121/2013), for the reason that he has not enrolled as a lawyer. He has also not applied for the appointment under Category No.121/2013. As regards appointment by transfer, the eligible applicants are categorized into two i.e., Category No.122/2013 and Category No.123/2013. It is evident from the notification inviting applications that appointment under Category No.122/2013 is reserved for employees of the various Government departments and employees of this court who possess a Degree in Law, three years service and have not attained the age of 40 years. The employees eligible to apply for appointment under Category No.123/2013 are employees of the Administrative Secretariat who belong to the Secretariat Subordinate Service. They should also possess a Degree in Law, should have completed three years of service and should not have attained the age of 50 years. From a reading of the notification it is evident that only those employees of the Administrative Secretariat who possess the requisite qualifications are entitled to apply for appointment under Category No.123/2013. The appellant can in our opinion seek appointment only under Category No.122/2013, which as stated earlier, is reserved to be filled up by appointment by transfer of persons serving in this court and in various Government departments. From a reading of the notification, we are satisfied that three categories are watertight compartments and persons falling under one category cannot apply for appointment under the other categories.

9. Then the only other question is whether Exts.P9 to P12 would entitle the petitioner to contend for the position that he is eligible to apply under Category No.123/2013 as well. Ext.P9, which is relied on by the petitioner, is a notification inviting applications for appointment to the post of Block Development Officer in the Rural Development Department. The method of appointment prescribed therein is by transfer from among Assistants/Senior Grade Assistants/Selection Grade Assistants in the Government Secretariat who have satisfactorily completed their probation, Extension Officers or their equivalents in the Department of Agriculture, Animal Husbandry, Panchayat and Industries, Senior Inspector of the Department of Co-operation, Junior Statistical Inspector and Deputy Tahsildars of Revenue Department. Relying on Ext.P10, it is contended that, pursuant to the said notification, Assistant Section Officers working in the Legislature Secretariat (Serial Nos.1, 4, 10 and 23 in Ext.P10) were selected and appointed as Block Development Officers/Secretary, Block Panchayat. Relying on Exts.P11 and P12, it is contended that the Government had in Memorandum No.92911/SD4/63/PD, dated 9.3.1965, directed that the Legislature Secretariat should be treated on the same footing as other Secretariats in the matter of applications for and reservation of posts in cadres outside the Secretariat and the staff of the Legislature Secretariat should not be barred from applying for posts for which Assistants in the other Secretariats are eligible.

10. Though learned counsel for the appellant placed much emphasis on Exts.P11 and P12 to contend that employees of the Legislature Secretariat and the Administrative Secretariat should be treated at par, we are not persuaded to accept the said submission. All that is stated in Exts.P11 and P12 is that employees of the Legislature Secretariat should not be barred from applying for posts for which Assistants in the other Secretariats are eligible. In the instant case, there is no such bar. Employees of the Legislature Secretariat like the petitioner are eligible to apply for appointment under Category No.122/2013, along with employees of various other Government departments and of this court. Employees of the Administrative Secretariat alone are entitled to apply under Category No.123/2013. It cannot therefore be said that in the instant case, employees of the Legislature Secretariat had been barred from applying for the post. The question that arises for consideration is whether the petitioner who was eligible to apply for appointment under Category No.122/2013 and had in fact applied under the said category should be permitted to apply for appointment under Category No.123/2013 as well. The answer in our opinion can only be an emphatic no.

11. That apart, we are not persuaded to read into Exts.P11 and P12, a stipulation to the effect that employees of the Legislature Secretariat should be treated as employees of the Administrative Secretariat in the matter of appointment to posts in the Administrative Secretariat. Exts.P11 and P12 relate to appointments to posts outside the Administrative Secretariat and not in the Administrative Secretariat. Therefore, for that reason also, we are of the opinion that the petitioner cannot place reliance on Exts.P11 and P12 to contend for the position that he was eligible to apply under Category No.123/2013. It is evident from the materials now placed before us that the petitioner had in fact applied for appointment under Category No.122/2013 and was not found eligible to be included in the short list, for the reason that he had not secured 32.67 marks, which is the mark secured by the last candidate included in the short list published on 28.04.2017. He was included in Ext.P6 short list for appointment in respect of Category No.123/2013 for the reason that he had secured marks above 8.67, which is the cut off mark in respect of that category. Merely for the reason that he was included in Ext.P6 short list, since the cut off marks are different, it cannot be said that he should have been included in the short list for Category No.122/2013 as well. The appellant, who did not secure adequate marks for inclusion in the short list for Category No.122/2013, cannot contend for the position that as he had also applied under Category No.123/2013 he is eligible to be considered for appointment under that category. From the materials available, the only conclusion possible is that the petitioner is not eligible to apply under Category No.123/2013 and he is not eligible to be considered for appointment under Category No.122/2013, for the reason that he did not qualify to be included in the short list, though he was eligible to apply. The view taken by the learned single Judge does not in our opinion, call for any interference.

We accordingly hold that there is no merit in the instant writ appeal. The writ appeal fails and is dismissed.