High Court of KeralaDivision BenchOriginal petition disposed of; Tribunal's order...

Surendran K & Subhashini V v. The State of Kerala & Ors.

Case / Petition Number:O.P.(KAT) No.343 of 2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Alexander Thomas
  • Viju Abraham
Judgment Date
2022-01-19
Court Decision / Holding
The impugned order of the Tribunal is set aside and quashed. The representations of the petitioners will be remitted to the State Government for fresh consideration and decision under Rule 39 of Part II KS & SSR, after hearing the petitioners, with directions to decide within two months. The State Government must consider the plea for appointment in light of the observations in this judgment and ensure fairness and sympathetic consideration.
Final Disposition
Original petition disposed of; Tribunal's order quashed; matter remitted to State Government for fresh Rule 39 consideration with hearing; directions to decide within two months; final disposal of petition occurs in light of the judgment.

Parties to the Case

Appellants / Petitioners

  • Surendran K
  • Subhashini V

Respondents

  • The State of Kerala
  • The Chief Secretary, Government of Kerala
  • Kerala Public Service Commission (KPSC)
  • Kerala Public Service Commission, District Office, Kasaragode

Legal Representation & Advocates

Counsels for Petitioners

  • • R.K. Muraleedharan

Counsels for Respondents

  • • P. C. Sasidharan (SC, KPSC)
  • • Saigi Jacob Palatty (Senior Government Pleader)

Case Synopsis & Summary

This is an original petition under Articles 226 & 227 challenging the Kerala Administrative Tribunal, Ernakulam Bench’s final order in OA(EKM) No.1432/2020 (dated 26.10.2021) which dismissed the applicants’ prayers for appointment as Clerk-Typist in Kasaragod district. The petitioners were placed at ranks 29 and 30 in Annexure-A2 (dated 17.02.2011) for Clerk-Typist after PSC selection; later, in 2011, LD Typist qualifications were introduced (Annexure-A6) and a clarificatory GO (Annexure-A8) stipulated applicability from 01.07.2011 onward. The Government’s changes, not clarified in Annexure-A6 for pre-2011 selections, led to the PSC advising LD Typist candidates against the Clerk-Typist vacancies, depriving the petitioners of their turn before the ranked list expired. The Tribunal held the State’s rejection under Annexure-A17 to be beyond its judicial review. The High Court held that Rule 39 of Part II KS & SSR could remedy genuine grievances, but the State’s discretion under Rule 39 must be exercised fairly. The Court quashed Annexure-A17, remitting the matter to the State Government for fresh consideration under Rule 39, with hearing, and directed a decision within two months, keeping in view sympathy and equity for the petitioners.

Provisions of Law Cited

Articles 226 & 227 of the Constitution of IndiaRule 39 of Part II KS & SSR

Legal Doctrines & Maxims

  • Functus officio
  • Fairness and equity in action under Rule 39 of Part II KS & SSR
  • Sympathy and compassionate consideration in governance

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners seek to set aside Annexure A17 (29.05.2020) and obtain appointment as Clerk-Typist in Kasaragode, contending that the 2011 revision of qualifications, made effective via Annexure A6 and clarified by Annexure A8, was not applicable to the 2011 Clerk-Typist list (Annexure A2). They argue that due to the expired ranked list, their right to appointment was unfairly denied, and the State should exercise Rule 39 to remedy the injustice by considering them for appointment with appropriate vacancies, with fairness and sympathy.

Contentions of Respondents

The respondents contend that the Tribunal correctly refused interference, as the PSC cannot override a past selection and the revised qualifications apply only to selections issued after 01.07.2011; Annexure A8 clarified this. They maintain that the State’s discretionary decision under Rule 39, taken with due process, is non-justiciable in judicial review and supported by precedent.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
A.P. Showkath Ali & Ors. v. State of Kerala & Ors.(2018) 11 SCC 688PositiveCited to support that Rule 39 powers can be exercised to mitigate grievances of beneficiaries where the fault lies not with them.
Aboobacker P. & Ors. v. Emilia MorrisILR 2020 (2) Ker. 599(DB)PositiveDivision Bench held that Rule 39 empowers considering authorities to act justly and equitably; reinforces fairness in discretionary decisions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 19[TH] DAY OF JANUARY 2022 / 29TH POUSHA, 1943 **==> picture [153 x 10] intentionally omitted <==** AGAINST THE ORDER DATED 26.10.2021 IN OA (EKM)NO.1432/2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (ADDL BENCH AT ERNAKULAM) ## PETITIONERS/APPLICANTS: 1 SURENDRAN K, AGED 51 YEARS, S/O.KANARAN, NELLIYULLAPARAMBATH HOUSE, MOKERI P.O., KOZHIKODE DISTRICT 673 507 2 SUBHASHINI V.,AGED 44 YEARS, W/O.SATHEESAN, SANGAMAN HOUSE, PEROL P.O., NEELESWARAM, KASARAGODE DISTRICT 670 314. BY ADV R.K.MURALEEDHARAN ## RESPONDENTS/RESPONDENTS: 1 THE STATE OF KERALA, REP.SECRETARY TO PERSONAL AND ADMINISTRATIVE REFORMS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE CHIEF SECRETARY, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM 695 001 3 KERALA PUBLIC SERVICE COMMISSION, REP.BY ITS SECRETARY, PATTAM, THIRUVANANTHAPURAM 695 004 4 KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KASARAGODE DISTRICT 671 121, REP.BY ITS DISTRICT OFFICER. BY ADV SHRI.P.C.SASIDHARAN, SC, KPSC THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 19.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(KAT) No.343 of 2021 2 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **..........................................................................** ## **O.P.(KAT) No.343 of 2021** _[Arising out of the impugned final order dated 26.10.2021 in_ _O.A.(EKM) No.1432 of 2020 on the file of the KAT, EKM]_ **.................................................................** Dated this the 19[th] day of January, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** The petitioners herein have filed the instant Ext.P2 Original Application, O.A.(EKM) No.1432 of 2020 before the Kerala Administrative Tribunal, Ernakulam Bench with the following prayers: - _“i) Set aside Annexure A17 order issued by the 1[st] respondent dated 29.5.2020;_ - _ii) Issue appropriate direction or orders, directing the respondents to appoint the applicants as Clerk/Typist in the existing vacancies at Kasargode district or by creating any supernumerary vacancy;_ - _iii) Declare that Annexure A16 decision is without considering the opinion of the law department vide Annexure A15 and the note prepared by the 1[st] respondent vide Annexure A14 as illegal;_ - _iv) Issue such other order as this Hon'ble Tribunal may deem fit to grant;_ - _v) Award cost of this proceedings.”_ 2. The Tribunal, after hearing both sides, has now rendered the impugned Ext.P1 final order dated 26.10.2021 in the instant O.A. (EKM) No.1432 of 2020, dismissing the said O.A. on the ground that the impugned Annexure-A17 G.O. (Ms.) No.06/2020/P&ARD, dated O.P.(KAT) No.343 of 2021 3 29.05.2020, refusing to exercise discretion under Rule 39 of Part II of KS & SSR to grant appointments to the petitioners, cannot be interfered with etc. It is this final verdict of the Tribunal at Ext.P1 that is under challenge in the instant Original Petition filed by the applicants in the O.A. The prayers in the instant Original Petition filed under Articles 226 & 227 of the Constitution of India are as follows: - _“i) Issue such orders setting aside Ext.P1 order dated 26.10.2021 issued by the Kerala Administrative Tribunal, Thiruvananthapuram Additional Bench at Ernakulam in OA(EKM)No.1432/2020; And_ - _ii) Issue appropriate directions to the Government to invoke Rule 39 of Part II of KS & SSR and to issue appointment orders appointing the petitioners as Clerk Typist with benefits from the date on which candidates from LD Typist list was advised and appointed in Social Service Department and Health Department._ - _iii) Any other appropriate order or direction as this Hon'ble Court may deem fit on the facts and in the circumstances of the case and allow this petition with cost_ .” 3. Heard Sri. R.K.Muralidharan, learned counsel appearing for the petitioners in the O.P./applicants in the O.A., Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 1 & 2 in the O.P./R1 & R2 in the O.A. and Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission appearing for R3 & R4 in O.P./R3 & R4 in the O.A. 4. A brief reference to the factual details in this case would be relevant and pertinent. In pursuance of the selection notification O.P.(KAT) No.343 of 2021 4 issued by the respondent Kerala Public Service Commission for selection to the post of Clerk-Typist in various departments in Kasaragod District, Category No.17/2006, the applicants had applied for the same and after due process of selection, they have been duly included in the ranked list finalised for the said selection for the post of Clerk-Typist, as per Annexure-A2 ranked list dated 17.02.2011 as rank Nos.29 & 30 respectively in the main list of the said ranked list. It may be relevant to note that the qualifications prescribed for the said post of Clerk-Typist in various departments in various districts, as per the Rules and norms governing the field and as published in the abovesaid selection notification issued by the respondent Kerala Public Service Commission are as follows: (i) Pass in SSLC or any equivalent qualification (ii) English Typewriting (Lower) Examination, KGTE/MGTE or equivalent qualification. 5. It appears that during the currency of Annexure-A2 ranked list dated 17.02.2011 for the post of Clerk-Typist, the respondent PSC had published yet another ranked list for a different category of post, viz., LD Typist in various districts, including in Kasaragod district, for which the qualifications prescribed as per the Rules and the selection notification are as follows: O.P.(KAT) No.343 of 2021 5 (i) Pass in SSLC or any equivalent qualification (ii) English Typewriting Lower Grade Certificate (KGTE) or equivalent qualification. (iii) Malayalam Typewriting Lower Grade Certificate (KGTE). (iv) Certificate in computer Word Processing or its equivalent qualification. 6. Thereafter, it appears that the competent authority of the 1[st] respondent State Government has issued Annexure-A6 G.O.(Ms) No.21/2011/P&ARD dated 01.07.2011, whereby it was ordered that the qualifications for the post of LD Typist, as above, will be made applicable to the post of Clerk-Typist as well. It is crucial to bear in mind that as on the date of issuance of Annexue-A6 G.O. dated 01.07.2011, Annexure-A2 ranked list for the post of Clerk-Typist was already finalized and was in force from 17.02.2011. On the premise that the new stipulations issued by the State Government as per Annexure-A6 G.O. dated 01.07.2011 would also govern the instant selection as per Annexure-A2 ranked list of Clerk-Typist, the respondent PSC authorities issued advice memos against 11 posts of Clerk-Typist reported to it, not from candidates included in Annexure-A2 ranked list dated 17.02.2011, but from the separate ranked list for the latter post of LD Typist. Advice memos as against O.P.(KAT) No.343 of 2021 6 vacancies so reported to the post of Clerk-Typist was not made from Annexure-A2 ranked list for the post of Clerk-Typist, but from the separate ranked list for the post of LD Typist. Later, the Government issued a modificatory order as per Annexure-A8 G.O.(P) No.33/2011/P&ARD dated 21.11.2011, ordering that the revision and change of qualifications for the post of Clerk-Typist, ordered as per Annexure-A6 G.O. Dated 01.07.2011, would apply only in respect of selection notifications issued by the PSC for that post on or after 01.07.2011 (date of issuance of Annexure-A6 G.O. dated 01.07.2011) and not in respect of selection notifications issued prior thereto. In other words, the Government has ordered that the revised qualifications as per Annexure-A6 G.O. dated 01.07.2011 will not be applicable for the instant selection covered by Annexure-A2 ranked list dated 17.02.2011 for the post of Clerk-Typist. 7. As per the facts disclosed in the pleadings of the respondent PSC, it appears that 11 posts of Clerk-Typist were duly reported to the PSC after the issuance of Annexure-A6 G.O. Dated 01.07.2011, and all those 11 posts have been utilized for advice of candidates included in the post of LD Typist and not by advice of candidates included in Annexure-A2 ranked list for the post of Clerk-Typist. Further, the petitioners also came to know that if the O.P.(KAT) No.343 of 2021 7 abovesaid 11 posts/vacancies in the post of Clerk-Typist were utilized for advise by the PSC, from among candidates included in AnnexureA2 ranked list, then the turn of both the applicants/petitioners would have arisen and they would have secured advice for appointment to the post of Clerk-Typist and that due to the mistake committed by the State Government, the persons who received advice for the abovesaid post of Clerk-Typist were candidates included in the separate ranked list for the post of LD Typist etc., and that the said illegality will have to be remedied by the State Government, etc. It so happened that the currency of Annexue-A2 ranked list dated 17.02.2011 had also by then expired and the turn of both the petitioners had not later arisen. Since the ranked list had expired by then and on the premise that the turns of advice of the applicants have been illegally deprived, on account of the abovesaid action of the State Government, they had preferred representations before the competent authority of the State Government urging and praying that discretion may be exercised by resort to the power under Rule 39 of Part II of KS & SSR and to grant appointments to the two petitioners, etc., to remedy the abovesaid illegality. 8. The Tribunal, in a previous round of litigation, had intervened in the matter and had rendered Annexure-A9 final order O.P.(KAT) No.343 of 2021 8 dated 04.08.2017 in O.A. (EKM) No.1094 of 2015, directing that the competent authority of the State Government should take a considered decision on the abovesaid pleas of the petitioners, for exercise of the powers of relaxation under Rule 39 of Part II of KS & SSR as made out in the representation produced therein as Annexure-A19, etc. The Tribunal has noted in para No.5 of Annexure-A9 verdict that the applicants were robbed and denied an opportunity for being advised for appointment due to the Government Order that had been issued, modifying the qualifications for the post of Clerk-Typist, which was subsequently waived by the Government. It is to be borne in mind that it is an elementary principle of service jurisprudence that once a selection notification is set in motion, ordinarily, there is no question of change of rules of the game. Hence, in the fitness of things, the Government should have clarified in Annexure-A6 G.O. itself that the revised qualifications for the post of Clerk-Typist will be applicable only for PSC selection notifications issued on or after the issuance of Annexure-A6 dated 01.07.2011 and not in respect of selections carried out on the basis of selection notifications issued prior thereto. The said aspect was realised by none other than the State Government, who remedied the same by belatedly issuing O.P.(KAT) No.343 of 2021 9 **-** Annexure A8 G.O. dated 21.11.2011 in that regard. 9. The scope and ambit of the powers conferred to the State Government under Rule 39 of Part II of KS & SSR is well settled. The Apex Court in the decision in _**A.P.Showkath Ali & Ors. v. State of Kerala & Ors. [(2018) 11 SCC 688]**_ has held that resort to the exercise of powers of relaxation under Rule 39 of Part II of KS & SSR would be well sustained when the beneficiaries of the orders had to suffer for no fault of theirs and it is held therein that exercise of Rule 39 to mitigate such grievances of the beneficiaries is not liable to be interfered with. In _**Aboobacker P. & Ors. v. Emilia Morris [ILR 2020 (2) Ker. 599(DB)]** a_ Division Bench of this Court has held that Rule 39 empowers the State Government to treat the matters in a just and equitable manner and that the justness of an order is liable to be decided on the touch stone of fairness and equity, which presupposes consideration of all relevant aspects and hearing of all affected persons. We have no doubt that the pleas made by the petitioners would certainly come within the contours and parameters of Rule 39 of Part II of KS & SSR, but the matter essentially would fall within the province and domain of the discretion of the State Government. But discretion cannot be unfettered and it has to be exercised reasonably and in a fair and just O.P.(KAT) No.343 of 2021 10 manner, and the aspects regarding litigation of persons who have suffered on account of no fault of theirs and especially on account of the fault of the authorities concerned, would certainly fall within the domain of that discretion. 10. It appears that the claims of the petitioners were duly processed by the competent authority of the State Government in the Personnel & Administrative Reforms Department as well as the Law Department. The pleadings and materials on record, including that borne out from Annexure-A12, etc. would make it clear that the competent officials of the State Government in the Personnel & Administrative Reforms Department have opined that the case of the applicants could be considered in terms of Rule 39 of Part II of KS & SSR for appointment, taking note of the facts and circumstances of the case. The matter was referred to the Law Department, which has also opined as per Annexure-A15, concurring with the abovesaid view of the Administrative Department concerned. It also appears that a report of the respondent Kerala Public Service Commission was also called for and report in that regard has been given by the respondent PSC to the State Government, making it clear that the advice turns of some of the candidates included in Annexure-A2 ranked list, including the two petitioners herein, could not be O.P.(KAT) No.343 of 2021 11 considered in view of the revised qualifications as per Annexure-A6 issued by the State Government and that if candidates were advised from Annexure-A2 ranked list on the basis of the pre-revised qualifications as subsequently ordered in Annexure-A8, then both the applicants’ turn for advice would have arisen as against 11 vacancies in the post of Clerk-Typist, which had been utilized for advice of candidates included in the post of LD Typist, etc. These aspects of the matter are also borne out from the reply statement filed by the respondent PSC, both before the Tribunal as well as before this Court recently. Thereafter, the matter was placed before the Cabinet of the State Government as it appears that the Rules of business prescribe that a claim in the nature of the present one has to be rendered by the said authority. Based on the decision taken by the Cabinet, the competent authority of the State Government has issued the impugned Annexure-A17 G.O.(Ms) No.06/2020/P&ARD dated 29.05.2020 holding that since Annexure-A2 ranked list dated 17.02.2011 has already expired by then, there is no question of considering and accommodating the claims of the two petitioners for appointment to the post of Clerk-Typist, in view of the time expiry of the ranked list. The operative portion of Annexure-A17 rejection order as contained in para No.4 thereof reads as follows: “ സർക�ർ ഈ വ�ഷയ� വ�ശദമ�യ� പര�ശശ�ധ�ച�. ശ�മത� O.P.(KAT) No.343 of 2021 12 സ�ബ�ഷ�ണ�.വ�, ശ�.സ�ശരനൻ.ക�, ശ�മത�.ബ�ന�.റ� , എന�വർ ഉൾക$ട ��റഗറ� നമർ 17/2006 ആയ ��ർക,- ട.$�സ തസ,ത��യ�ക0 റ�ങ, പട�� 18/08/2015-ൽ റദ�യ�ട�ളത�ണ, . റദ�യ�ട�ള റ�ങ, പട��യ�ൽ ന�ന� ന�യമന� നൽ��ൻ ചടങള�ൽ വ9വസ:യ�0. ആയത�ന�ൽ ഹർജ�ക�ർക, ക� എസ, & എസ, എസ, ആർ ഭ�ഗ� II ചട� 39 പ��ര� സർക�ര�നള വ�ശവചന�ധ���ര� പശയ�ഗ�ച, ന�യമന� നൽശ�ണ സവ�ശശഷ സ�ഹചര9� ഈ ശ�സ�ൽ ന�0വ�0�ളത�യ� ��ണന�0.” 11. The Tribunal, after hearing both sides and after meticulously considering the rival pleas, has taken the view that the said rejection order is not amenable at the hands of the Tribunal in exercise of judicial review, as the said view is rendered by the State Government in its discretion. It is this verdict of the Tribunal at Ext.P1, that is under challenge before us. 12. The facts are not in dispute at all. The applicants were duly included as rank Nos.29 & 30 in Annexure-A2 ranked list dated 17.02.2011 for the post of Clerk-Typist in Kasaragod district. The selection notification in that regard and the selection process were finalised in terms of Annexure-A2 strictly in terms of the then prevailing qualifications for the said post. It was much later that the qualifications were revised as per Annexure-A6 G.O. dated 01.07.2011. Ordinarily, in a matter of this nature, it goes without saying that, once a selection process is set in motion, there is no question of changing the rules of the game subsequently. The elementary principle of service jurisprudence in that regard does not O.P.(KAT) No.343 of 2021 13 require the citation of any judicial authority. Therefore, in the fitness of things, the Government should have clarified in Annexure-A6 G.O. dated 01.07.2011 itself that the revised qualifications will be applicable only for the selection notifications issued by the respondent PSC, on or after the issuance of Annexure-A6 G.O. dated 01.07.2011 and not in respect of the selections carried out on the basis of selection notifications issued prior thereto. That elementary aspect of the matter was completely bypassed and overlooked by the State Government. Later, realising the illegality and impropriety in that regard none other than the State Government has made amends and has remedied the scenario by issuing Annexure-A8 G.O. Dated 21.11.2011, ordering that the revised qualifications as per AnnexureA6 G.O. dated 01.07.2011 will apply only in respect of the selections carried out on the basis of selection notifications issued by the PSC on or after 01.07.2011, i.e., the date of issuance of Annexure-A6 G.O. and not in respect of selection notifications issued prior thereto. Before this, the respondent PSC has proceeded on the basis of Annexure-A6 G.O. and in respect of 11 vacancies in the post of ClerkTypist, which are otherwise covered by Annexure-A2 ranked list, advices were given to candidates in the separate ranked list for LD Typist, who are having the revised qualifications. There is no dispute O.P.(KAT) No.343 of 2021 14 that if elementary position in Annexure-A8 has been clarified in Annexure-A6 itself, then both the applicants who are having rank Nos.29 & 30 as per Annexure-A2, would have certainly received advice memos for appointment to the post of Clerk-Typist, in Kasaragod district in the two departments mentioned in the pleadings of the respondent PSC, viz., Social Justice Department and Health & Family Welfare Department, respectively. Later, the maximum currency period of Annexure-A2 ranked list dated 17.02.2011 had expired and by then the turns for advice of both these petitioners had not arisen, going by the limited vacancy position available. So, the Tribunal was right in observing in the previous round of litigation that the petitioners have been deprived of their turn for advice only because of the abovesaid issues arising out of Annexue-A6, issued at the hands of the respondent State Government. The belated remedy in the said situation as per Annexure-A8 has not remedied the deprivation of the benefit otherwise due to the applicants. 13. It is common ground of all the parties that the ranked list had expired by then and it is precisely due to the expiry of the ranked list that the applicants were constrained to approach the State Government to exercise the powers under Rule 39 of Part II of O.P.(KAT) No.343 of 2021 15 KS & SSR, as otherwise the respondent PSC was completely incompetent to the matter and had become _functus officio_ as far as Annexure-A2 ranked list is concerned after its expiry and there was no question of the applicants getting any advice for appointment on account of their inclusion in Annexure-A2 ranked list, after the expiry of the ranked list. So, it is precisely on account of this peculiar scenario that the applicants were constrained to approach the State Government to remedy the situation. Now, the sole ground of rejection raised by the State Government in Annexure-A17 is that they cannot intervene in the matter and they have to keep their hands off, as the ranked list has expired by then. The said ground of rejection cannot be said to be a relevant ground of rejection at all and the same is nothing but an irrelevant ground of rejection, which has vitiated the decision making process. Moreover, the pleadings and materials, including that as per Annexure-A10 issued by the respondent PSC, Annexure-A12 issued by the Personnel & Administrative Reforms Department of the State Government, Annexure-A15 issued by the Law Department of the State Government, etc. would show that all along, the officials concerned of the State Government had duly applied their minds and have recommended the case of the applicants for appointment, by resort O.P.(KAT) No.343 of 2021 16 to the power under Rule 39 of Part II of KS & SSR. The sole ground of rejection is untenable as it is completely irrelevant for the purpose of consideration and hence, the matter would require interdiction in judicial review proceedings. The contrary view taken by the Tribunal is not justifiable in the eyes of law. 14. At this stage, we feel that there is no necessity for us to issue a final mandamus in the matter, but the matter would require quashment of the impugned order with a remit to the State Government. Accordingly, it is ordered that the impugned rejection order at Annexure-A17 G.O.(Ms) No.06/2020/P&ARD dated 29.05.2020 will stand set aside and quashed. The representations of the applicants directed to be considered in terms of Annexure-A9 verdict, and have referred to in Annexure-A17 will stand remitted to the State Government for consideration and decision afresh, in the light of the observations and findings made by this Court hereinabove. The competent authority of the State Government will afford reasonable opportunity of being heard to the petitioners herein, either in person or through their authorised representatives or authorised counsel if any, and after adverting to all relevant aspects in the matter, will take a considered decision on the plea of the petitioners for appointment to the abovesaid post in question, O.P.(KAT) No.343 of 2021 17 for resort to the power under Rule 39 of Part II of KS & SSR, without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment. While doing so, it has to be borne in mind that, it is precisely on account of the expiry of the ranked list and due to the illegality committed by the State Government that the applicants were constrained to approach the State Government with the abovesaid plea, and also it is an undisputed fact of the matter that, but for the abovesaid issues, the applicants would have certainly received advice memos, on account of their inclusion in Annexure-A2 ranked list, as against 2 of the 11 vacancies mentioned herein above. Further, it has also to be borne in mind that the previous verdict of the Tribunal at Annexure-A9 has become final and conclusive between the parties and one of the specific directions issued by the Tribunal in Annexure-A9 verdict, especially in its concluding part, is that the matter should be decided by the State Government with the sympathy that it deserves. Therefore, that aspect of the matter regarding sympathetic and compassionate consideration of the matter taking into account the plight of the petitioners should also be duly adverted to by the State Government. These crucial aspects of the case have not been considered in its proper perspective in the rendering of the O.P.(KAT) No.343 of 2021 18 impugned verdict. So. Ext.P1 final order dated 26.10.2021 of the Tribunal in O.A.(EKM) No.1432 of 2020 will stand set aside. With these observations and directions, the above original petition will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** Sd/- **VIJU ABRAHAM** **JUDGE** cks O.P.(KAT) No.343 of 2021 19 ## **APPENDIX OF OP(KAT) 343/2021** PETITIONERS' EXHIBITS - Exhibit P1 TRUE COPY OF THE ORDER OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (ADDITIONAL BENCH, ERNAKULAM) IN OA(EKM) NO.1432/2020 DATED 26.10.2021 - Exhibit P2 TRUE COPY OF THE MEMORANDUM OF APPLICATION WITH ANNEXURES IN OA(EKM) NO.1432/2020 DATED 26.10.2021 - Annexure A1 A TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION IN CATEGORY NO.17/2006 DATED 25.4.2006 - Annexure A2 A TRUE COPY OF THE RELEVANT PAGES OF THE RANKED LIST NO.82/11/DOB DATED 17.2.2011 - Annexure A3 A TRUE COPY OF THE REQUEST SUBMITTED BY THE 2ND APPLICANT UNDER THE RTI ACT DATED 4.8.2014 - Annexure A4 THE REPLY FURNISHED BY THE INFORMATION OFFICER OF THE 4TH RESPONDENT DATED 26.8.2014 - Annexure A5 A TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION OF LD TYPIST IN CATEGORY NO.225/2005 - Annexure A6 A TRUE COPY OF THE GO(MS) NO.21/2011/P&ARD DATED 1.7.2011 - Annexure A7 A TRUE COPY OF THE COMMUNICATION NO.D.R1(3)34337/11/GW/P OF THE 3RD RESPONDENT DATED 10.2.2012 - Annexure A8 A TRUE COPY OF THE GO(P) NO.33/2011/P&ARD DATED 21.11.2011 - Annexure A9 A TRUE COPY OF THE ORDER IN OA(EKM) O.P.(KAT) No.343 of 2021 20 NO.1094/2015 DATED 4.8.2017 - Annexure A10 A TRUE COPY OF THE LETTER NO.AVI(1)8038/2015/GW DATED 31.10.2018 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT RECEIVED UNDER THE RTI ACT. - Annexure A11 A TRUE COPY OF THE COMMUNICATION NO.AVI(1)/8038/2015/GW DATED 22.5.2019 FROM THE 3RD RESPONDENT TO THE 1ST RESPONDENT - Annexure A12 A TRUE COPY OF THE FILE NOTE OF PAGE NOS.97 TO 101 OBTAINED UNDER RTI ACT. - Annexure A13 A TRUE COPY OF THE DECISION OF THE CABINET MEETING ON 4.3.2020 OBTAINED UNDER THE RTI ACT. - Annexure A14 A TRUE COPY OF THE NOTE PREPARED BY THE 1ST RESPONDENT OBTAINED UNDER THE RTI ACT. - Annexure A15 A TRUE COPY OF THE OPINION OF THE LAW DEPARTMENT DATED 19.3.2020 OBTAINED UNDER THE RTI ACT. - Annexure A16 A TRUE COPY OF THE DECISION OF THE CABINET DATED 27.5.2020 - Annexure A17 A TRUE COPY OF THE GO(MS) NO.6/2020/P&ARD DATED 29.5.2020