Partly allowed

Pepsi Mohan v. State of Kerala

Kerala HC13 Oct 2010WP(C)/935/2010

Case brief

AI extract

What is this about?

The petition questioned the Kerala Public Service Commission's advice to appoint him as Warden instead of Lower Division Clerk. The single judge followed a prior decision holding such advice invalid and set aside the directions for Warden post, ordering the Petitioner's retention in the LDC list with appropriate clarification.

What did the court decide?

The advice memos directing appointment as Warden were set aside. The Petitioner is retained in the ranked list for LDC post. Appropriate orders must clarify appointment to LDC within one month.

Pepsi Mohan Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.SIRI JAGAN

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WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932

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WP(C).No. 935 of 2010(N)

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PETITIONER(S):

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PEPSI MOHAN, KOCHAYYATH, ADINADU SOUTH, KATTIKADAVU.P.O, KARUNAGAPPALLY, KOLLAM DISTRICT.

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BY ADVS. DR.K.P.SATHEESAN

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SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, SC/ST DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, PALAKKAD.

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R1 BY GOVT. PLEADER SRI. A.J. VARGHESE R2 BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SVS/

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WP(C).No. 935/2010(N)

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: COPY OF RELEVENT PAGES OF THE NOTIFICATION IN CATEGORY NO.168/2006 PUBLISHED IN THE EXTRA ORDINARY GAZETTE DATED 30/12/2006.

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P2: COPY OF THE ADVICE MEMO ISSUED BY THE 2ND RESPONDENT DATED 25/11/2009.

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P3: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 05/12/2009.

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P4: COPY OF THE JUDGMENT DATED 30/08/2005 IN WPC NO.15115/2004

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RESPONDENT'S EXHIBITS NIL

/TRUE COPY/

P.A. TO JUDGE

SVS/

S.SIRI JAGAN, J.

W.P. (C) NO. 935 OF 2010

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Dated this the13^th day of October, 2010.

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JUDGMENT

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The question involved in this writ petition is as to whether after selecting the petitioner for the post of Lower Division Clerk in various departments, the petitioner can be advised by the Public Service Commission to the post of Warden in the Scheduled Tribe Development Department. The Public Service Commission has advised the petitioner to the post of Lower Division Clerk/Warden in Scheduled Tribe Development Department. The very question was considered by me in W.P.(C) No.25965 of 2010 wherein following other judgments of this Court, I held that the Public Service Commission cannot advise candidates from the list for Lower Division Clerks in various departments to the post of Warden. That judgment reads as follows:-

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“Pursuant to notification inviting applications for the post of L.D.Clerk in various departments in Thrissur District. The 1^st petitioner was advised to the post of LDC/Warden in ST Department. The grievance of the 1^st petitioner is that petitioner has been appointed as LDC and posted as Warden which according to the petitioner is illegal in so far as the 1^st petitioner's selection was to the post of LD Clerk. The petitioners therefore, seeks the following reliefs:

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i) To issue a writ of certiorari quashing Ext.P2 and P3 advice memos only to the extent to which those advice the petitioners for appointment to the post of warden in ST

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W.P. (C) NO. 935 OF 2010

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Development Department and to the extent to which those do not advice the petitioners for appointment to the post of L.D.Clerk in various departments in Thrissur district;

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ii) To issue a writ of mandamus directing the respondents 1 and 2 to issue advice memo to the petitioners, advising them to the post of L.D.Clerk in various departments in Thrissur district on the basis of their position in Ext.P1 ranked list;

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iii) To issue a writ of mandamus directing the respondents 1 and 2 to modify Ext.P2 and P3 by converting the same as one advising the petitioners for appointment to the post of L.D. Clerk in various departments;

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iv) to issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fit on the facts and circumstances of the case.

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Petitioners submit that the issue involved in this writ petition is squarely covered by the decision of a learned judge of this Court in Ext.P4 judgment. The learned counsel for the Public Service Commission stoutly opposes the prayers. According to him, Ext.P4 judgment has been taken in Writ Appeal No.1713 of 2010 and therefore, the petitioner cannot be given the relief as in Ext.P4 pending disposal of that appeal. He also relies on other decisions of other single judges of this Court in W.P.(C).Nos.30967 of 2007 and 14019 of 2009 in answer to the same. The learned counsel for the petitioner points out that those decisions were also considered and have been distinguished by the very same learned judge who passed Ext.P4 judgment, in Maya v. State of Kerala in 2010 (3) KLT 454. The petitioner's counsel also points out that in the writ appeal no stay was granted.

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2. Having heard both sides.

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3. I am inclined to follow Ext.P4 judgment which reads thus:

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“Petitioners were included in the ranked list for the post of LDC in various Departments. However, they were advised to the post of Warden in the Scheduled Tribe Development Department as per Exts.P3, P4 and P5 advise memos. The contention raised is that, they having been included in the ranked list for the post of LDC in various Departments, they could not have been appointed in the ST Development Department as Warden. This case of the petitioner is fully covered in their favour, in view of the judgment in WP(C).No.3896 of 2010 and connected cases. In view of the above, petitioners are entitled to succeed as

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W.P. (C) NO. 935 OF 2010

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they could not have been advised to Scheduled Tribe Development Department as Warden. Accordingly, Exts.P3,P4 and P5 stand set aside. Petitioners will be retained in the ranked list and will be advised against the immediately arising vacancies already reported”.

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4. Accordingly, this writ petition is also disposed in terms of that judgment. That part of Exts.P2 and P3 contrary to the above decision shall stand set aside. The respondents 1 and 2 shall issue appropriate orders clarifying that the 1^st petitioner has been advised to the post of L.D. Clerk within one month from the date of receipt of a copy of this judgment. This decision shall be applicable only to the 1^st petitioner since the learned counsel for the petitioners submits that the second petitioner's complaint no longer survives.”

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In the above circumstances this Writ Petition is disposed of

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in terms of that Judgment.

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S.SIRI JAGAN, JUDGE.

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mns

Pepsi Mohan v. State of Kerala

Case brief

What is this about?

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Pepsi Mohan v. State of Kerala

Case brief

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