SMITHA M.G. v. STATE OF KERALA, KERALA PUBLIC SERVICE COMMISSION, SECRETARY KERALA PUBLIC SERVICE COMMISSION, Sindhu.J 'Deepthi' and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942** ## **WP(C).No.35894 OF 2019(J)** ## **- PETITIONER :** **SMITHA M.G., AGED 43 YEARS W/O.RAJU K.N., KARIYATUPARAMBIL, KALADY, MANICKAMANGALAM, ERNAKULAM, NOW RESIDING AT KARIYATTUPARAMBIL HOUSE, MEENANGADI.P.O, WAYANAD DISTRICT, PIN-673591** **BY ADVS. SRI.P.U.SHAILAJAN SRI.V.SREEJITH (K/1398/2000) SMT.VIDYA KURIAKOSE** **- RESPONDENTS :** **1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001 2 THE KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM – 695 004, REPRESENTED BY ITS SECRETARY 3 THE SECRETARY KERALA PUBLIC SERVIE COMMISSION, PATTOM, THIRUVANANTHAPURAM, PIN – 695 004 4 SINDHU.J 'DEEPTHI' (NEAR GOVERNMETN H.S), CHERUNNIYOOR.P.O, THIRUVANANTHAPURAM, PIN-695142 BY SRI.P.C.SASIDHARAN, SC, KPSC BY ADV. SRI.C.A.ANOOP BY ADV. SMT.R.KRISHNA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-09-2020, THE COURT ON 07-10-2020 DELIVERED THE FOLLOWING:** WP(C).No.35894 OF 2019(J) -: 2 :- ## **JUDGMENT** ## **Dated this the 7th day of October 2020** The petitioner has filed this writ petition seeking the following prayer :- “Issue a writ of mandamus or other appropriate writ or order, directing respondents 1 to 3 to appoint this petitioner to the post of Computer Assistant Grade II (Statewide) in Universities in Kerala from Ext.P1 rank list and on the basis of Ext.P3 letter submitted by the 4[th] respondent.” 2. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel appearing for the Kerala Public Service Commission as well as the learned counsel appearing for the 4[th] respondent. 3. The petitioner participated in selection for the post of Computer Assistant Grade II (Statewide) in Universities in Kerala. She was included in Ext.P1 ranked list at rank No.3 in the supplementary list for Viswakarma community. The 4[th] respondent was included in the same supplementary list at rank No.2. It is submitted that the 4[th] respondent had issued Ext.P3 letter to the 3[rd] respondent requesting to delete her name from the ranked list thereby relinquishing her claim for appointment. However, without considering Ext.P3, respondents 2 and 3 issued advice memo to the 4[th] respondent and refused to make appointment to the vacancy WP(C).No.35894 OF 2019(J) -: 3 :- created by the 4[th] respondent's non-joining, on the ground that the ranked list had expired. 4. It is stated that Ext.P1 ranked list was published on 3.10.2016. It expired on 2.10.2019. On 7.8.2019, Ext.P3 relinquishment letter was submitted by the 4[th] respondent. It is submitted that Ext.P3 was signed by the 4[th] respondent in the presence of a Gazetted Officer. It is stated that there is no specific format for relinquishment letter and that Ext.P3 is fully in accordance with Rule 18(i) of the Kerala Public Service Commission Rules of Procedure. It is stated that in Ext.P3, a separate box was drawn to put the signature of the 4[th] respondent. But, instead of putting the signature in the said box, the 4[th] respondent put her signature above the said box and the same was attested. It is stated that even after receiving Ext.P3, respondents 2 and 3 sent advice memo to the 4[th] respondent. The 4[th] respondent did not join. However, the respondents 2 and 3 have denied appointment to the petitioner on the ground that the ranked list had expired. 5. The learned counsel for the petitioner submits that the petitioner is over aged for any public employment and that highly technical grounds are now being relied upon to deny appointment to the petitioner. It is submitted that the insistence of signature at a specific place in Ext.P3 is completely unsupported by any provision in WP(C).No.35894 OF 2019(J) -: 4 :- the Rules of Procedure and that Ext.P3 is liable to be accepted and acted upon by the respondents. Relying on Rule 18(ii) of the Kerala Public Service Commission Rules of Procedure, it is contended that in the absence of any prescribed form of application, the 4[th] respondent's relinquishment letter ought to have been accepted. 6. A counter affidavit has been placed on record on behalf of respondents 2 and 3. It is submitted that the relinquishment application of the 4[th] respondent was received on 16.8.2019. It is stated that the relinquishment application was rejected on 19.9.2019 and advice memo was sent on 26.9.2019. It is stated that there are several cases of impersonations and false and forged relinquishment letters being submitted before the Commission and that circulars had been issued requiring strict compliance with all procedures for submitting letters of relinquishment. It is submitted that Exts.R2(a), R2(b), R2(c) and R2(d) are circulars issued by the Public Service Commission providing specific directions and strict compliance while considering applications for relinquishment. 7. It is submitted that the application for relinquishment in terms of Rule 18(ii) comprises two parts. The first part is the declaration by the applicant and the second part comprises attestation of the signature of the applicant by a Gazetted Officer. It is stated that the two parts of the application are separate and WP(C).No.35894 OF 2019(J) -: 5 :- supplementary to each other and that a defective application cannot be accepted as there is every chance of impersonation. It is stated that the Commission can accept relinquishment applications only if it satisfies the stipulations laid down in Rule 18(ii) of the PSC Rules of Procedures, 1976 (Kerala). It is stated that in the absence of a valid relinquishment application, the request of the 4[th] respondent had been turned down, which is not under challenge in this writ petition. It is further submitted that in view of the fact that the 4[th] respondent had been advised for appointment by advice memo dated 26.9.2019 and without the NJD vacancy having been reported to the Public Service Commission before the expiry of the ranked list, no further steps could have been taken by the Commission. It is further contended that in the absence of any prayer to report the NJD vacancy to the Commission, the prayer sought for in the writ petition cannot be allowed since the Commission has no independent right to make appointments against vacancies which have not been reported, from a ranked list, which has already expired. 8. The learned Standing Counsel also places reliance on a decision of a Division Bench of this Court in **Balakrishnan** v. **Public Service Commission** [1994 (1) KLT 490] to contend that relinquishment is possible only on or before the date of receipt of requisition for advice against the post to which advice is to be made. WP(C).No.35894 OF 2019(J) -: 6 :- It is further held by the Division Bench of this Court that where vacancies had not been reported to the Commission during the currency of the ranked list, no directions could be issued to the Commission to make advice from a ranked list which had expired. 9. The 4[th] respondent has also placed a counter affidavit on record. It is stated that Ext.P3 letter was written by the 4[th] respondent and signed in the presence of the Assistant Registrar of Co-operative Societies (General), Mavelikara on 7.8.2019 and it was also attested by him. It is stated that the 4[th] respondent had omitted to affix signature in the column drawn, which was an inadvertent omission. It is submitted that the 4[th] respondent received the rejection of relinquishment only after receiving the advice memo and that the 4[th] respondent was not interested in the employment and therefore did not join. 10. I have considered the contentions advanced on all sides. The specific prayer made in the writ petition is for a direction to respondents 1 to 3 to appoint the petitioner to the post of Computer Assistant Grade II in Universities in Kerala from Ext.P1 ranked list on the basis of Ext.P3 letter submitted by the 4[th] respondent. The PSC Rules of Procedure, 1976 (Kerala) are the relevant rules in the instant case. Rule 13 provides for the validity of ranked lists. Rule 14 provides that the Commission shall advice candidates for all the WP(C).No.35894 OF 2019(J) -: 7 :- vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked lists are kept alive, in the order of priority, if any, and in the order of merit subject to the rules of reservation and rotation, wherever they are applicable. Rule 15 provides for the manner of publication of the ranked lists and the advice lists. Rule 18(i) and 18(ii) read 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 acknowledgement 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/her full address and signature, duly attested by a Gazetted Officer of State/Central Government with signature, name, designation and office seal, on or before the date of receipt of requisition for advice based on which he/she is to be advised. The Commission shall thereupon remove his/her 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.” 11. It is not in dispute before me that the application for relinquishment submitted by the 4[th] respondent as per Ext.P3 stood rejected by the 2[nd] respondent and the 4[th] respondent was advised for appointment from the ranked list. The order of rejection is not WP(C).No.35894 OF 2019(J) -: 8 :- subjected to challenge before this Court. It is also not in dispute that the vacancy which arose on account of the non-joining of the 4[th] respondent was not reported by the University to the Kerala Public Service Commission. In the above view of the matter, I am of the opinion that the prayers as sought for cannot be granted by this Court in terms of the clear procedure laid down by Rule 14 of the Kerala Public Service Commission Rules of Procedure. Further, the contention that the rejection of the application for relinquishment submitted by the 4[th] respondent was an exercise in hyper-technicality cannot also be accepted in view of the provisions of Rule 18(ii) and the contentions raised by the PSC with regard to repeated cases of impersonation and fraud. 12. After the Writ Petition was argued in full and reserved for judgment, an attempt has been made to correct the inherent defects in the Writ Petition by filing an application for amendment of the pleadings. The rejection of the relinquishment made by the 3[rd] respondent is sought to be challenged. However, even in case the amendment is allowed, there would be no substantial change in the situation since the ranked list admittedly stood expired on 2.10.2019 without the procedure required for advice of the petitioner being carried out. The amendment therefore would be an exercise in futility. WP(C).No.35894 OF 2019(J) -: 9 :- In any view of the matter, the prayer as sought for in the writ petition cannot be granted by this Court in view of the specific provisions of the Rules of Procedure. In the result, the writ petition fails and the same is accordingly dismissed. Sd/- **ANU SIVARAMAN JUDGE** Jvt/23.9.2020 WP(C).No.35894 OF 2019(J) -: 10 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE RANK LIST NO.635/2016/ER XII AND CATEGORY NO.043/2016 PUBLISHED BY THE PUBLIC SERVICE COMMISSION FOR THE POST OF COMPUTER ASSISTANT GRADE II(STATEWIDE)IN UNIVERSITIES IN KERALA ON 3.10.2016** - **EXHIBIT P2 TRUE COPY OF THE ONLINE REGISTRATION CERTIFICATE OF THE APPLICATION ISSUED BY THE PUBLIC SERVICE COMMISSION DATED 11.8.2016** - **EXHIBIT P3 TRUE COPY OF THE CONSENT LETTER DATED 7.8.2019 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT-R2(a) TRUE COPY OF THE CIRCULAR NO.CR.06/1998 DATED 03.08.1998.** **EXHIBIT-R2(b) TRUE COPY OF THE CIRCULAR NO.CR.07/2012 DATED 21/02/2012** **EXHIBIT-R2(c) TRUE COPY OF THE CIRCULAR NO.04/2014 DATED 25/02/2014** **EXHIBIT-R2(d) TRUE COPY OF THE CIRCULAR NO.11/2017 DATED 28/09/2017** //TRUE COPY// P.A. TO JUDGE