O.P.(KAT) No. 4270 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** ## **OP(KAT).No.4270 of 2013** **AGAINST THE ORDER IN T.A.No.5340/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 3 TO 8:** - **1 MANOHARAN K.S. KALARIPARAMBU VELIYIL, CHERAMANGALAM, MUTHAMMA P.O.,ALAPPUZHA.** - **2 HARIKUMAR A.S. UMABHAVAN, NEDUMAN, KALLAYAM P.O., THIRUVANANTHAPURAM.** - **3 MATHEW XAVIER EEARATHARA HOUSE, B.M.C.P.O., NEAR N.G.O FLAT,ERNAKULAM DISTRICT.** - **4 P.A.JALALUDHEEN, PALLIKKUNNEL HOUSE, KANJIRAMATTOM P.O., ERNAKULAM.** - **5 PRAMEELA S, POSTAL STAFF QUARTERS 2/2, SHORANUR, PALAKKAD** - **6 PRADEEP KUMAR C.K. KRISHNASAROJAM, VII/296, MANJAKKADE, SHORANUR,PALAKKAD.** **BY ADVS.SRI.P.RAVINDRAN (SR.) SRI.SREEDHAR RAVINDRAN** O.P.(KAT)No.4270 of 2013 2 ## **RESPONDENTS/RESPONDENTS 1 AND 2 & APPLICANT:** - **1 THE DIRECTOR OF PRINTING, THIRUVANANTHAPURAM - 695 001.** - **2 **THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, ERNAKULAM-682 030 (CORRECTED)** - **3 ANIL.S.,S/O.K.N.SIVANANDAN, PRINTER GRADE - I, CENTRAL GOVERNMENT PRESS, THIRUVANANTHAPURAM,RESIDING AT MINERVA BUILDING, AKSHARA VEETHI,PETTAH P.O., THIRUVANANTHAPURAM - 695001.** - (THE ADDRESS OF THE 2ND RESPONDENT IS CORRECTED AS:** **DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION THIRUVANANTHAPURAM - 695 004** **AS PER ORDER DATED 3.1.2014 IN I.A.NO.17481 OF 2013)** **R1 & R2 BY G.P.SMT.PRINCY XAVIER SRI.C.A.CHACKO SRI.P.C.SASIDHARAN, SC FOR PSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(KAT)No.4270 of 2013 3 ## **JUDGMENT** ## **Ravikumar, J.** This original petition directed against the order dated 22.10.2013 passed by the Kerala Administrative Tribunal carries questions of relevance for resolution. The petitioners herein were respondent Nos.3 to 8 in T.A.No.5340 of 2012 on the files of the Kerala Administrative Tribunal, Thiruvananthapuram and the 3[rd] respondent herein was the applicant therein. The 3[rd] respondent herein initially approached this Court by filing W.P.(C)No.11802 of 2004 and after the constitution of the Administrative Tribunal it was transferred to the Tribunal and was re-numbered as T.A.No.5340 of 2012. In the Transferred Application he sought for quashment of Ext.P11 issued by the first respondent assigning seniority to the petitioners herein in the seniority list of Printer Grade-II. He also sought for restoration of his seniority as has been shown in Ext.P6. The Tribunal after considering the rival contentions disposed of the Transferred Application. After quashing Ext.P11 to the extent it gives seniority to the third respondent herein/the applicant therein only from 15.2.1999 the Tribunal ordered to give him seniority in that list treating his date of advice as 30.6.1998. Hence, this Original Petition. O.P.(KAT)No.4270 of 2013 4 2. Heard the learned counsel for the petitioners, the learned Government Pleader appearing for the first respondent, the learned Standing Counsel for the Kerala Public Service Commission and also the learned counsel appearing for the third respondent/the applicant. 3. The factual matrix that ultimately led to the impugned order is as follows:- The Kerala Public Service Commission (for short `PSC') invited applications for appointment to the post of Printer Grade-II which is a post born in the cadre of Kerala Government Presses Subordinate Service. In Palakkad District notification therefor, was issued on 2.4.1991 and after completing the process of selection a ranked list was published on 23.1.1996. The petitioners who responded to the said notification were figured in the said ranked list and consequently, they were advised for appointment on 4.2.1999 and appointed as per order dated 27.2.1999. In Thiruvananthapuram District rank list for appointment to the said post was published by the PSC after due notification on 4.6.1998. Subsequently, from the said list 27 candidates were advised for appointment on 30.6.1998. However, the 3[rd] respondent herein/the applicant who was also included in the said list published for Thiruvananthapuram District was advised for appointment O.P.(KAT)No.4270 of 2013 5 only on 15.2.1999. Ext.P1 is his advice memo. Consequently, he was appointed on 6.3.1999. Subsequently, the 2[nd] respondent prepared a seniority list of Printers Grade-II who were advised till 15.2.1999 from the ranked list published on 4.6.1998 in Thiruvananthapuram District and forwarded it to the first respondent. Pursuant thereto, on 20.6.2001 the first respondent issued Ext.P6 order re-assigning the seniority and effective dates of advice in respect of Printers Grade-II who were advised till 15.2.1999. Raising the contention that it was done without any authority of law and in violation of their rights, the petitioners filed O.P.No.22469 of 2001 before this Court. At the time of its admission an interim order staying operation of Ext.P6 was passed by this Court, which was produced in the T.A. as Ext.P7. Later, the said order was confined to the petitioners as per Ext.P8 dated 14.9.2001. During the pendency of the original petition the first respondent had issued Ext.P11 proceedings dated 5.11.2003, recalling Ext.P6 and restoring the seniority of the petitioners in the cadre of Printer Grade-II. The date of advice of the 3[rd] respondent was corrected thereunder as 15.2.1999. In fact, this Ext.P11 proceedings dated 5.11.2003 was brought to the notice of this Court and thereupon recording the factum of issuance of Ext.P11 this Court closed O.P.No.22469 of 2001 with O.P.(KAT)No.4270 of 2013 6 liberty to the parties aggrieved to challenge Ext.P11, if so advised. Evidently, it is availing the said liberty granted under the said judgment that the 3[rd] respondent herein filed W.P.(C)No.11802 of 2004 which was later, transferred and renumbered as T.A.No.5340 of 2012 that culminated in the impugned order. 4. A perusal of the impugned order would reveal the reasons assigned by the Tribunal for its decision. The Tribunal observed that the PSC is not infallible and administrative authorities dealing with grievances of others should be conceded with the power to correct the mistakes. It also held that Rule 3(c) of the Kerala State & Subordinate Services Rules (KS & SSR) specifically authorises the PSC to correct mistakes in its advices and that even in the absence of any provision, the administrative authorities have to be conceded with the power in certain circumstances to review and recall their earlier orders, going by the decision of a Full Bench of this Court in **State of Kerala** v. **Somarajan and Others** reported in **1984 KLT 293** . Furthermore, it was held that the petitioners herein/respondents 3 to 8 therein had never chosen to challenge directly the decision of the PSC to antedate the advice of the applicant, the 3[rd] respondent herein and therefore, they could not raise collaterally a challenge against the same in the O.P.(KAT)No.4270 of 2013 7 Transferred Application. When the PSC corrected the date of advice of the applicant/3[rd] respondent herein and certain others as 30.6.1998 instead of 15.2.1999 the appointing authority is bound by the date of advice given by the PSC, it was further held. The impugned order is the outcome of such conclusions and findings. 5. Various contentions have been raised by the petitioners to assail the order passed by the Tribunal in the above mentioned T.A. The core contention is that the challenge against the authority of the PSC to alter the date of advice was repelled by the Tribunal by erroneously placing reliance on Rule 3(c) of Part II, KS & SSR. It is true that even in the absence of any express provision for emending errors/mistakes administrative authorities should be conceded with inherent power to effect correction. But, at the same time, if correction of any mistake is likely to affect a third party who acquired a right in the meanwhile, necessarily, such parties should be put on notice. Even in such circumstances, exercise of such power shall not be sans limitations. Before adverting to the correctness of the finding of the Tribunal that Rule 3(c) of Part-II, KS & SSR authorises the PSC to correct mistakes in its advice, in the manner it had been done in the case on hand, it is only proper and profitable to consider some more O.P.(KAT)No.4270 of 2013 8 relevant factual aspects involved in this case. 6. Though the 3[rd] respondent/the applicant in the T.A. held a fairly high rank in the ranked list published by the PSC on 4.6.1998, for Thiruvananthapuram District and from the said list 27 candidates were advised for appointment on 30.6.1998, he was not included therein owing to his lower rank than those advised candidates. Admittedly, from the said list the 3[rd] respondent/applicant was advised for appointment only on 15.2.1999 and by that time, the petitioners were advised for appointment in Palakkad District from the ranked list drawn for the same post for that District. A perusal of the pleadings of the 3[rd] respondent/the applicant in the T.A. would reveal that he contended therein that as on 4.6.1998, 59 vacancies were there in the post of Printer Grade-II in the various Government Presses in Thiruvananthapuram District and on 30.6.1998 the second respondent advised only 26 candidates for appointment to the said post. In other words, the remaining vacancies were not then filled up. In the meanwhile, on 27.6.1998 the first respondent appointed 16 candidates sponsored by the Employment Exchange to the aforesaid post, as per Ext.P4. Essentially, contending that it was done in violation of Ext.P5 circular carrying a direction to all the Heads of Department and O.P.(KAT)No.4270 of 2013 9 appointing authorities to obtain non-availability certificate of any existing ranked list for the posts concerned, with PSC, before making provisional appointment through Employment Exchange some candidates included in the ranked list published for Thiruvananthapuram District, approached this Court by filing O.P.No.16830 of 1998. In paragraph 4 of T.A.No.5340 of 2012 the 3[rd] respondent herein/the applicant therein stated thus:- “There upon, some candidates included in the ranked list filed O.P.No.16840/1998, before this Honorable Court for a direction to the 2[nd] respondent to advise the eligible candidates to the vacant posts. In the above mentioned Original Petition, C.M.P.No.29830/98 was filed seeking an interim direction to the 2[nd] respondent therein to advise the selected candidates, to the 28 reported vacancies. On 16.12.1998, when the petition came up for hearing, this Honorable Court was pleased to direct the 1[st] respondent to file an affidavit to explain why did he make temporary appointment when there was a list published by the P.S.C. Pursuant to the said direction on 8.1.99 an affidavit was filed stating that the 2[nd] respondent had issued a letter stating that remaining 28 candidates will be advised later. It was only after the filing of the Original Petition that the 2[nd] respondent advised the candidates to the remaining vacancies. Thus there was a delay of seven months in advising the eligible candidates to the vacant posts, due to the lapse of 2[nd] respondent. That was the reason for specifying the effective date of advise as 30.6.98 to the candidates who were advised to those vacancies subsequently.” We may hasten to add that in the T.A. from which this original petition O.P.(KAT)No.4270 of 2013 10 arises the petitioners had not mentioned anything about the outcome of O.P.No.16830 of 1998. Evidently, it is only after such development in the said writ petition that the 3[rd] respondent/the applicant was advised for appointment on 15.2.1999 and then appointed as Printer Trainee by the first respondent as per Ext.P2. On successful completion of the training he was appointed as Printer Grade-II as per Ext.P3 order dated 2.7.1999 with effect from 15.6.1999. The post of Printer Grade-II is borne on the cadre of Kerala Government Presses Subordinate Services and the Government Presses are not located evenly in all the Districts. Even after effecting direct recruitment to the entry post viz., the post of Printer Grade-II, a State wise seniority list has to be prepared and in fact, Ext.P10 is the relevant extract of such a State wise seniority list of Printer Grade-II published on 23.8.2003. It is produced by the 3[rd] respondent/the applicant himself. The 3[rd] respondent/the applicant and similarly situated appointees were assigned seniority from the actual date of advice for appointment viz., from 15.2.1999 only. Thereafter, their seniority was reassigned from 30.6.1998, as per Ext.P6. Ext.P6 would also reveal that such reassignment of seniority was effected pursuant to the letter referred as item No.2 therein viz., a letter from District Officer of PSC, Thiruvananthapuram bearing No.DTC(5) 2755/93 O.P.(KAT)No.4270 of 2013 11 dated 19.2.1999. It is to be noted that in Ext.P6 it was also specifically stated thus:- “മ�ൽപറഞ സ�ന�മ��റ�റ� ക�� ത�രവനനപര� ജ�ല��മ�ക� ��ത��ണ� എനത�ന�ൽ സ�നക�റങൾക� കണക�ല�ടകന ” **.** സ�സ�നത� സ�ന�മ��റ�റ� ഇപക�ര����ര�കണല�ന�ല 7. The names of the petitioners were not included in Ext.P6 obviously because they were directly recruited in Palakkad District and in fact, it was issued only for reassignment seniority of persons like the 3[rd] respondent whose names were figured in the ranked list published for appointment to the post of Printer Grade-II in Thiruvananthapuram District on 4.6.1998 and appointed therefrom, till 15.2.1999. Nonetheless, apprehending that it may ultimately adversely affect their position in the State wise seniority list and consequently, in the matter of further promotions, the petitioners filed O.P.No.22469 of 2001 before this Court. As noticed hereinbefore, the said original petition was closed taking note of Ext.P11 whereby and whereunder Ext.P6 was recalled and seniority of the petitioners herein in the cadre of Printer Grade-II was restored. 8. Admittedly, the PSC did not file counter affidavit/reply affidavit in the Transferred Application. The first respondent filed a O.P.(KAT)No.4270 of 2013 12 counter affidavit when the writ petition (W.P.(C)No.11802 of 2004) which was renumbered as T.A.No.5340 of 2012, was pending before this Court. The petitioners herein filed a reply statement. In fact, the third respondent therein who is the first petitioner herein, filed a reply statement on his behalf as also on behalf of the other petitioners herein viz., respondents 5 to 8 therein. In the said statement they mainly contended that the third respondent herein viz., the applicant therein, was actually advised only on 15.2.1999 whereas, they were advised on 4.2.1999 and therefore, Ext.P11 requires no interference. The Tribunal considered the rival pleadings and contentions and observed in the impugned order that the PSC is not infallible and it may also commit mistakes. It is held therein that administrative authorities dealing with grievances of others should be conceded power to correct their mistakes. After making such observations the Tribunal went on to hold that Rule 3(c) of Part II, KS & SSR specifically authorizes the PSC to correct the mistakes in its advices and even in the absence of express provision, the administrative authorities are conceded power in certain circumstances to review or recall their earlier orders in the light of the decision of the Full Bench of this Court in **Somarajan's** case (supra). That apart, the Tribunal held that respondents 3 to 8 had never chosen O.P.(KAT)No.4270 of 2013 13 to directly challenge the decision of the PSC to ante-date the advice of the applicant and hence, they could not raise collaterally a challenge against the same in the above mentioned Transferred Application. When the admitted position is that the date of advice of the applicant/the third respondent herein was revised by the PSC to 30.6.1998 instead of the actual date of advice viz., 15.2.1999 and the PSC alone is competent to change the date of advice and in such circumstances, the appointing authority is bound by the date given by the PSC, it was further held. It is assigning such reasons that Ext.P11 was set aside to the extent it gave seniority to the applicant only from 15.2.1999 and further ordered to give seniority to the applicant/3[rd] respondent to treat the date of advice of the 3[rd] respondent as 30.6.1998. As stated earlier, it is in the said circumstances that the writ petition which ultimately culminated in the impugned order was filed. 9. In the light of the aforesaid circumstances and taking into account the rival contentions we will firstly consider the question whether the power under Rule 3(c) of Part II, KS & SSR is available or applicable for correcting the date of advice of candidates by the PSC. In that context, it is only proper to refer to Rule 3(c) of Part II, KS & O.P.(KAT)No.4270 of 2013 14 SSR and it reads thus:- “3.(c) Notwithstanding anything contained in these rules, the Commission shall have the power to cancel the advice for appointment of any candidate to any service if it is subsequently found that such advice was made under some mistake. On such cancellation the appointing authority shall terminate the service of the candidate. Provided that the cancellation of advice for appointment by the Commission and the subsequent termination of service of the candidate by the appointing authority shall be made within a period of one year from the date of such advice.” 10. The decision of a Division Bench of this Court in **The Kerala Public Service Commission** v. **Jayadev (1977 KLT 85)** assumes relevance in the context of the contentions. After referring to Rule 3(c) of Part II, KS & SSR the Division Bench held thus:- “A plain reading of the rule gives no doubt that the Public Service Commission will have the power to cancel the advice for appointment of any candidate to any service if it is subsequently found that such advice was made under 'some mistake'. The mistake can therefore be exclusively that of the Public Service Commission. The mistakes relied on by the Public Service Commission, as far as can be Judged from the facts available before us, in the three cases, also appear to be mistakes arising exclusively from the acts or omissions of the Public Service Commission. There is nothing in the wording of the rule which would justify a limited meaning to be given to the word `mistake' by limiting it to mistake committed by Public Service Commission on the inducement of the candidate whose name has been advised. In fact, it appears to us that O.P.(KAT)No.4270 of 2013 15 the introduction of any such qualification would amount to a re-drafting of the rule so as to change its amplitude and scope. Unless there are compelling reasons as in the case of the rule read as it is in the grammatical sense leading to absurdities or to arbitrariness so patent as to shake the judicial conscience it is not the function of a court to rewrite the rule however harsh it may appear to be.” 11. After such consideration virtually, the Division Bench held that the meaning of the word `mistake' employed in Rule 3(c) would take in mistake exclusively arising from the acts or omissions of the PSC. In other words, it was held that it could not be said that it would only take in mistakes committed by the PSC on the inducement of the candidate whose name was advised. In the said decision, it was also held that courts could not rewrite the rule. We have already extracted Rule 3(c) of Part-II, KS & SSR. In the light of the aforesaid decision as also from a bare reading of the said provision it is evident that the power available thereunder to the PSC is to cancel the advice for appointment of any candidate to any service if subsequently it was found that such advice was made under some mistake. In such circumstances, how can such power be construed as a power to antedate the advice by the PSC by assigning a reason that such a situation has resulted from a mistake arising from the acts or omissions of the PSC ? The proviso thereunder also assumes relevance in the context O.P.(KAT)No.4270 of 2013 16 of the case. It prescribes an outer limit for exercise of the said power. Going by the proviso to Rule 3(c) it could be exercised only within a period of one year from the date of such advice. In this context, it is also relevant to note that at the time when the Division Bench was considering **Jayadev's** case (supra) more time was available for exercise of such power under Rule 3(c) of Part II, KS & SSR as going by the provision then it stood it could be made 'within the period of probation of the candidate'. The amendment was brought in to limit the period as 'within a period of one year from the date of such advice' as per G.O.(P) 501/79/GAD. dated 10.9.1979 published as SRO No.1130/79 in Kerala Gazette No.39 dated 2[nd] October, 1979. Thus, it can be seen that even though originally the power under Rule 3(c) could have been exercised within the period of probation of the candidate concerned, by virtue of the amendment now, it could be exercised only 'within a period of one year from the date of such advice'. Thus, it can be seen that even in the case of a mistake which is so serious so as to entail termination of the service of the candidate concerned, cancellation of advice and subsequent termination of service of the candidate concerned shall be made in exercise of the said power, within one year from the date of his/her advice for appointment. When O.P.(KAT)No.4270 of 2013 17 such a power is statutorily conferred only for the purpose of such cancellation it cannot be said that it could be exercised or invoked for a different purpose not specifically envisaged or contemplated under Rule 3(c) of Part-II, KS & SSR. As noticed hereinbefore, in this case, the PSC did not file any counter affidavit or did not have a case that the date of advice of the applicant/3[rd] respondent was corrected invoking the power under Rule 3(c) of Part II, KS & SSR. In view of the unambiguous provision under Rule 3(c) which empowers to cancel the advice for appointment and subsequent termination of service of the candidate concerned, for the mistake arose out of the acts or omissions of the PSC, be it occurred on the inducement of the candidate whose name was advised or otherwise, the said power could not be exercised for correcting the advice for a totally different purpose. If it is exercised otherwise, endorsing the same would tantamount to re-writing of the said provision. For the foregoing reasons the finding of the Tribunal that correction, as has been done under Ext.P6, is permissible under Rule 3(c) cannot be sustained. 12. In the case on hand, Ext.P6 was issued later than the period provided under the proviso to Rule 3(c) of Part-II, KS & SSR reckoning the period from the date of advice for appointment of the O.P.(KAT)No.4270 of 2013 18 applicant/the 3[rd] respondent. He was actually advised on 15.2.1999 and Ext.P6 by which it was corrected was issued only on 20.6.2001. In such circumstances, even if for argument sake it is taken that the power under rule 3(c) is available, it could not have been invoked after a period of more than one year. If the specific power to cancel the advice for appointment and subsequent termination of service of the candidate could not be effected under Rule 3(c) after a period of one year from the date of such advice how can it be used for a different purpose, beyond the statutorily prescribed period. Hence, on that count also, the said finding cannot be sustained. The Tribunal, in the light of the Full Bench decision in **Somarajan's** case (supra) held that the administrative authorities should be conceded power to correct mistakes. But, when the exercise of such power is likely to visit a third party with adverse civil consequences how can it be exercised in violation of the principles of natural justice that too, after a reasonable period. In the case on hand, the petitioners were included in a ranked list published for appointment in Palakkad District on 23.1.1996 and they were advised for appointment on 4.2.1999. The list in which the applicant/3[rd] respondent was included was published for appointment in Thiruvananthapuram District on 4.6.1998 and admittedly, the 3[rd] O.P.(KAT)No.4270 of 2013 19 respondent was actually advised only on 15.2.1999. True that, from the said list, on 30.6.1998, 27 candidates were advised for appointment. The contention of the 3[rd] respondent was that as on that day 59 vacancies were available in the post of Printer Grade-II in Thiruvananthapuram District. It is also the case of the 3[rd] respondent that ignoring Ext.P5 circular and existence of a live ranked list for appointment, the first respondent appointed 16 candidates sponsored by the Employment Exchange to the aforesaid post, as per Ext.P4. Some of the candidates included in the ranked list for Thiruvananthapuram District wherein the 3[rd] respondent was a rank holder, had chosen to challenge the said action by filing O.P.No.16830 of 1998. As noticed hereinbefore, the 3[rd] respondent got no case that he was one among the petitioners in O.P.No.16830 of 1998. In such circumstances, how can the 3[rd] respondent claim the benefit of predating of the advice to 30.6.1998 as even in the case of the petitioners in O.P.No.16830 of 1998 by virtue of Ext.P11 the date of advice was shown only as the actual date of advice viz., 15.2.1999. There is also nothing on record which would reveal that Ext.P6 was issued with notice to the petitioners herein. In fact, none of the respondents including the official respondents got no case that it was passed after putting the O.P.(KAT)No.4270 of 2013 20 petitioners on notice. It is also relevant to note that the petitioners had filed O.P.No.22469 of 2001 challenging Ext.P6 and this Court as per Ext.P7 had stayed the operation of Ext.P6. True that, subsequently, it was confined to the petitioners herein who were the petitioners therein. They did not pursue with the matter carrying the challenge against Ext.P6 as by virtue of Ext.P11, Ext.P6 was recalled and their seniority in the cadre of Printer Grade-II was restored. In the aforesaid circumstances, the Tribunal ought not have assigned the reason that the petitioners had not chosen to challenge the letter of the District Officer of PSC dated 19.2.1999, referred as item 2 in Ext.P6, for holding the issue against the petitioners. The Tribunal had virtually ignored to take into consideration the fact that even the petitioners in O.P.No.16830 of 1998 did not raise any grievance regarding their nonadvice on 30.6.1998 and did not seek for appropriate relief in that regard in O.P.No.16830 of 1998. As regards the 3[rd] respondent, he was not a petitioner therein and at no point of time he approached any authority or court for getting the advice pre-dated. In short, on their own, none of them moved any authority or Court to get their advice pre-dated. It is in fact, the letter from District Officer of PSC, Thiruvananthapuram bearing No.DTC(5)2755/93 dated 19.2.1999 that O.P.(KAT)No.4270 of 2013 21 caused pre-dating of the 3[rd] respondent and certain others included in the list for appointment of Printer Grade-II in Thiruvananthapuram District published on 4.6.1998 and actually advised on 15.2.1999, to 30.6.1998. We have already found that the Tribunal was not justified in setting aside Ext.P11 whereby Ext.P6 was cancelled to the extent it granted seniority to the 3[rd] respondent only from 15.2.1999 and also in ordering to give seniority in the list treating his date of advice as 30.6.1998, virtually based on the provisions under Rule 3(c) of Part II, KS & SSR, for the reasons mentioned hereinbefore. Though the PSC had not filed any counter affidavit/reply statement in T.A.No.5340/2012 the learned Standing Counsel for PSC attempted to justify the action in issuing letter dated 19.2.1999 that led to the issuance of Ext.P6, by relying on Rule 15A of the Kerala Public Service Commission Rules of Procedure. Therefore, the question is whether Rule 15A of the Kerala Public Service Commission Rules of Procedure can be invoked for the purpose of correcting the date of advice rather, for pre-dating the advice ? As noticed hereinbefore, the PSC had not filed any counter affidavit stating that date of advice was corrected invoking the power under Rule 15A of the Procedural Rules. The Kerala Public Service Commission Rules of Procedure viz., the revised rules of procedure O.P.(KAT)No.4270 of 2013 22 came into force with effect from 16.08.1976. Rule 15A thereof reads thus:- “The Commission shall have the power to correct any clerical, typographical, arithmetical or other mistake in the ranked lists, advice lists or short lists etc., or errors arising therein from any accidental slip or omission at any time, either on its own motion or on the application of any of the parties concerned.” Thus, it can be seen that for the purpose of correcting the errors arising from any accidental slip or omission, at any time, the PSC is empowered to exercise the power under Rule 15A of its Rules of Procedure on its own motion or on the application of any of the parties concerned. The said provision certainly, empowers the PSC to correct mistakes in the ranked lists or advice lists, etc. Evidently, the District Officer of PSC, Thiruvananthapuram issued letter dated 19.2.1999 in relation to the pre-dating of advice of certain appointees to the post of Printer Grade-II in Thiruvananthapuram District. It is produced by the 3[rd] respondent in this proceedings as Annexure-B1. He has also produced Annexures-B2 and B3 along with an affidavit dated 6.1.2017. In Annexure-B3 it is stated that the reference to a Court order made in Annexure-B2 is with respect to the order in O.P.No.16830 of 1998. 13. Now, we will consider whether the Tribunal is justified in interfering with Ext.P11 even if, it is taken that Ext.P6 was issued based O.P.(KAT)No.4270 of 2013 23 on the provisions under Rule 15A of the Procedural Rules. Existence of any particular power is different and distinct from exercise of the said power. Therefore, even when it is found that errors arising from accidental slip or omission from the part of the PSC could be corrected either suo motu by the PSC or on application of any of the parties concerned, the question to be considered in this case is whether the said power could have been or should have been invoked, that too, in blatant violation of the principles of natural justice. We refer to violation of the principles of natural justice as the changes brought about as per Ext.P6 got an impact in the matter of fixation of seniority of personnel in the integrated seniority list of Printer Grade-II and still, persons like the petitioners who were advised earlier than the petitioners in O.P.No.16830 of 1998 and the 3[rd] respondent, of course, in another district, were not put on notice. As noticed hereinbefore, as per Ext.P6, in respect of Printers Grade-II in Thiruvananthapuram District who were advised till 15.2.1999 their seniority was reassigned with effect from 30.6.1998 and such reassignment of seniority carries with it adverse consequences on persons like the petitioners. There is no case for the respondents including the official respondents that it was so, reassigned with notice to persons belonging to the said O.P.(KAT)No.4270 of 2013 24 category and directly recruited in other districts. The petitioners herein were advised for appointment on 4.2.1999 in Palakkad District from a ranked list published for the said district for appointment to the post of Printer Grade-II as early as on 23.1.1996. The 3[rd] respondent herein/the applicant was advised for appointment from the ranked list published on 4.6.1998 for direct recruitment to the said category in Thiruvananthapuram District, on 15.2.1999. Indisputably an integrated seniority list of Printers Grade-II in the Department is to be prepared based on the date of effective advice of appointees. The actual effective date of advice of the 3[rd] respondent is 15.2.1999 whereas, the effective date of advice of the petitioners is 4.2.1999. In such circumstances, under normal circumstances, there is no reason to place the 3[rd] respondent above the petitioners in the integrated list for the category of Printer Grade-II. It was revised as per Ext.P6. Seniority of persons advised up to 15.2.1999 in Thiruvananthapuram District was reassigned solely taking into account the fact that vacancies for effecting advice and appointment of the 3[rd] respondent and certain similarly situated persons included in the list concerned prepared for Thiruvananthapuram District, were available as on 30.6.1998 and that despite existence of such vacancies only 27 candidates from the said O.P.(KAT)No.4270 of 2013 25 list were advised and appointed. We have already taken note of the fact that feeling aggrieved by the inaction on the part of the PSC in not advising candidates from the list concerned drawn for such appointment in Thiruvananthapuram District, wherein the 3[rd] respondent's name also figured, some of the rank holders therein approached this Court by filing O.P.No.16830 of 1998. Virtually, they filed the original petition contending that ignoring the existence of the list for appointment to the post of Printer Grade-II published on 4.6.1998 and ignoring Ext.P5 circular carrying a direction to all Heads of Department and appointing authority to obtain non-availability certificate of any existing rank list for the posts concerned before resorting to temporary appointments, the official respondents effected provisional appointments through Employment Exchange as per Ext.P4. The 3[rd] respondent admittedly was not a party to the said original petition. As stated earlier, in the said original petition the first respondent had filed an affidavit revealing the issuance of a letter dated 19.2.1999 by the second respondent to the effect that as against the remaining vacancies the remaining 28 candidates could be advised later. It is thereafter that 3[rd] respondent was advised for appointment on 15.2.1999. Though the 3[rd] respondent had not stated anything regarding the outcome of the said original O.P.(KAT)No.4270 of 2013 26 petition we called for the records and on scrutiny we found that the said original petition was dismissed as infructuous on 5.4.2002 by this Court. In this context, it is also relevant to refer to the reliefs sought for by the petitioners therein and they read thus:- - “i) issue a writ of mandamus, order or direction in the nature thereof, directing the 2[nd] respondent to advice the selected candidates including the petitioners to the reported vacancies as per the ranked list, immediately; ii) issue a writ of mandamus, order or direction in the nature thereof, directing the 3[rd] respondent to report all the available vacancies in the post of printer grade-II in Trivandrum District expeditiously.” From the reliefs sought for in the said original petition as extracted hereinbefore, it is evident that no prayer whatsoever was made by the petitioners therein to pre-date their advice whereas, the prayer was only to advise them and other selected candidates against the 28 reported vacancies as per the rank list, immediately. In such circumstances, how the 3[rd] respondent who was not at all a party to O.P.No.16830 of 1998 could seek such a relief. True that, his case is that as per Ext.P11, Ext.P6 ought not to have cancelled. In this context, we have already taken note of the fact that against Ext.P6 the petitioners herein filed O.P.No.22469 of 2001 and as per Ext.P11 this Court stayed the operation of Ext.P6. There was no need to the O.P.(KAT)No.4270 of 2013 27 petitioners to pursue with the said original petition as Ext.P6 was recalled by Ext.P11 and their seniority in the cadre of Printer Grade-II was restored. 14. The facts expatiated hereinbefore would reveal that the petitioners responded to a notification inviting applications for appointment to the post of Printer Grade-II in Palakkad District, on 2.4.1991. After completing the process of selection a ranked list was published on 23.1.1996. They were advised from the said list on 4.2.1999 and were appointed based on the said advice, on 27.2.1999. In the case of the 3[rd] respondent, the ranked list for appointment to the post of Printer Grade-II in Thiruvananthapuram District was published only on 4.6.1998 that is, more than two years since the publication of ranked list in Palakkad District. That apart, the petitioners were advised earlier than the 3[rd] respondent. In the said contextual situation, how can the delay in the matter of advice and appointment in Palakkad District could be worked out against the petitioners. In fact, even with such delay they were advised and appointed earlier than the 3[rd] respondent, true that, they were so appointed in Palakkad District. In the said context, it is relevant to refer to a decision of the Hon'ble Apex Court in **Dalalah Gojah** v. **State of Kerala** reported in **1998 (1)** O.P.(KAT)No.4270 of 2013 28 **KLT 567 (SC)** . In that case, in respect of two vacancies occurred on 6.10.1972 the appellant therein had a right to be considered for appointment against one of the vacancies and at that point of time none of the respondents therein had even been selected for appointment to the post concerned and their selection was notified only in the second list, prepared long later than the list wherein the appellant's name figured. The Apex Court held that the delay or inaction on the part of the Government in notifying the appellant's appointment is no reason to deprive the appellant of her seniority. In the case on hand, the ranked list in Palakkad District was published on 23.1.1996 and the name of the petitioners were figured therein. The 3[rd] respondent's name figured only in a list prepared for Thiruvananthapuram District about two years later than the publication of the list for Palakkad District viz., on 4.6.1998. That apart, the petitioners were advised for appointment on 4.2.1999 and the 3[rd] respondent was advised for appointment only on 15.2.1999. In the writ petition, which was instrumental to the appointment of the 3[rd] respondent and similarly situated persons no direction was given for ante-dating the advice. As noticed hereinbefore, virtually, consequent to the appointment of the petitioners therein it was dismissed as O.P.(KAT)No.4270 of 2013 29 infructuous on 5.4.2002. These aspects were not at all taken into consideration by the Tribunal. But, at the same time, though such points were pointedly gone into by the official respondents they had done justice to the petitioners by restoring their seniority in the integrated seniority list of Printer Grade-II in the Department after recalling Ext.P6, in and vide Ext.P11. These factual aspects were not taken into account by the Tribunal and at the same time, Ext.P11 recalling Ext.P6 was sustained relying on a provision which was totally inapplicable for the purpose viz., Rule 3(c) of Part II, KS & SSR. In the circumstances explained hereinbefore, even the provision under Rule 15A of the Kerala Public Service Commission Rules of Procedure available for correction of errors or omissions committed by the PSC could not have been invoked to the prejudice of the petitioners and in favour of the 3[rd] respondent. In the circumstances, the quashment of Ext.P11 to the extent mentioned hereinbefore and the direction as per the impugned order of the Tribunal to assign seniority to the 3[rd] respondent above the petitioners in the integrated seniority list of Printer Grade-II cannot be sustained. They are liable to be interfered with and set aside. We do so. Consequently, the impugned order of the Tribunal quashing Ext.P11 order and issuing direction on the O.P.(KAT)No.4270 of 2013 30 aforesaid lines, is set aside. In short, the seniority of the petitioners vis-a-vis the 3[rd] respondent shall be fixed in the light of Ext.P11. This Original Petition is accordingly allowed as above. Sd/- **Judge** **C.T.RAVIKUMAR** Sd/- **ANIL K.NARENDRAN Judge** TKS O.P.(KAT)No.4270 of 2013 31 ## **APPENDIX** ## **PETITIONERS'EXHIBITS:** **ANNEXURE A1 ANNEXURE-A1: TRUE COPY OF THE T.A.NO.5340/2012 FILED BY THE 3RD RESPONDENT HEREIN BEFORE THE KAT ALONG WITH EXHIBITS.** **EXHIBIT P1 TRUE COPY OF THE ADVICE MEMO DATED 15.2.99. EXHIBIT P2 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT ON 6.3.99 EXHIBIT P3 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT ON 2.7.99 EXHIBIT P4 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT 27.6.98 EXHIBIT P5 TRUE COPY OF THE CIRCULAR DATED 25.8.86 EXHIBIT P6 TRUE COPY OF THE ORDER DATED 20.6.2001 EXHIBIT P7 TRUE COPY OF THE ORDER IN C.M.P NO.36793/01 IN OP NO.22469/01 DATED 31.7.2001 EXHIBIT P8 TRUE COPY OF THE ORDER IN C.M.P NO.36793/01 IN OP NO.22469/01 DATED 14.9.2001 EXHIBIT P9 TRUE COPY OF THE ORDER DATED 15.10.2001 EXHIBIT P10 TRUE COPY OF THE RELEVANT EXTRACT OF THE SENIORITY LIST OF PRINTER GRADE II PUBLISHED ON 23.8.2003. EXHIBIT P11 TRUE COPY OF THE LETTER DATED 5.11.2003 EXHIBIT P12 TRUE COPY OF THE LETTER DATED 6.1.2004** O.P.(KAT)No.4270 of 2013 32 - **ANNEXURE-A2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT DATED 16.7.2005** - **ANNEXURE-A3 TRUE COPY OF THE REPLY STATEMENT ALONG WITH ANNEXURE-R3(A) FILED BY THE PETITIONERS DATED 17.10.2013** - **ANNEXURE-A4 TRUE COPY OF THE ORDER OF THE TRIBUNAL IN T.A.NO.5340/2012 DATED 22.10.2013** - **ANNEXURE-A5 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONERS DATED 18.06.2018.** - **ANNEXURE-A6 TRUE COPY OF THE ORDER DATED 19-9-2018 AND RELEVANT EXTRACT OF THE SENIORITY LIST DATED 01.06.2018.** - **ANNEXURE-B1 TRUE COPY OF COMMUNICATION NO.DTC(3)2755/93 DATED 15.2.1999 ISSUED BY 2ND RESPONDENT TO THE 1ST RESPONDENT.** - **ANNEXURE-B2 TRUE COPY OF COMMUNICATION DATED 21/11/2012 OF STATE PUBLIC INFORMATION OFFICER, KPSC DISTRICT OFFICE, THIRUVANANTHAPURAM.** - **ANNEXURE-B3 TRUE COPY OF COMMUNICATION DATED 5/2/2013.** ## **TKS**