Allowed

Kerala Public Service Commission v. Dr.Ansu.T.James

Kerala HC5 Nov 2019OP(KAT)/444/2017

Case brief

AI extract

What is this about?

The High Court of Kerala, through a bench of two judges, allowed the Kerala Public Service Commission's petition against the Administrative Tribunal's order. The court held that the Tribunal wrongly directed appointment advice for vacancies that were not actual at the time of the rank list expiration, as two were anticipated future vacancies and one was a deputation that never materialized.

What did the court decide?

The original Writ Petition was allowed, and the order of the Kerala Administrative Tribunal directing advice for non-existent vacancies was set aside.

Kerala Public Service Commission Vs… — Pension and Retirement Benefits | Kerala HC (2019)

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941

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OP(KAT).No.444 OF 2017(Z)

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AGAINST THE ORDER/JUDGMENT IN OA 394/2017 DATED 07-07-2017 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/S:

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KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY SECRETARY,KERALA PUBLIC SECVICE COMMISSION, PATTOM,THIRUVANANTHAPURAM-695 004, KERALA.

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BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC

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RESPONDENT/S:

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1 DR.ANSU.T.JAMES KUREETHRA, INDUSTRIAL NAGAR P.O.,CHANGANCHERRY, KOTTAYAM, KERALA, 686 106.

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2 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,DEPARTMENT OF HEALTH & FAMILY WELFARE,SECRETARIAT, THIRUVANANTHAPURAM-695 039, KERALA.

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3 THE DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF COLLEGIATE EDUCATION,THIRUVANANTHAPURAM-695 001, KERALA.

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R1 BY ADV. SRI.JYOTHISH D.MONY R1 BY ADV. SRI.S.PRASANTH AYYAPPANKAVU R1 BY ADV. SMT.VARSHA BHASKAR R2-3 BY GOVERNMENT PLEADER

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OTHER PRESENT:

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SR.GP SRI.ANTONY MUKKATH

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05-11-2019, THE COURT ON 05-11-2019 DELIVERED THE FOLLOWING:

OP(KAT)444/17

K.VINOD CHANDRAN

& V.G.ARUN, JJ.

O.P(KAT).No. 444 of 2017

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Dated this the 5^th day of November, 2019

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JUDGMENT

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Vinod Chandran, J.

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Petitioner is the Kerala Public Service Commission (KPSC), aggrieved with the order of the Tribunal directing advice of three vacancies which have been allegedly reported by the Medical Education Department before the expiry of the rank list. The learned Standing Counsel for the PSC argues with reference to the proforma under which the vacancies were reported that those were only anticipated vacancies and there was no vacancy as such to make appointments for which advice has to be made by the PSC.

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We see that the Tribunal also had proceeded on the basis that the date of occurrence of the vacancies was 28.12.2016. We have seen Annexure A-3 which is the proforma for reporting vacancies. The number of vacancies reported by the said proforma are four. The details of the vacancies are in column 8. One of the vacancies is due to Leave Without Allowance of a faculty for two years and three anticipated vacancies. Of the three anticipated vacancies, one is on

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OP(KAT)444/17

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deputation allowed by the Government to the post of Assistant Professor in Ocular Electro Physiology in Regional Institute of Ophthalmology, second one is by the retirement of one Dr.Elizabath John, which admittedly is on a future date ie: 31.5.2017, and the third anticipated vacancy is by way of re-shifting of one Associate Professor post as per G.O 2^nd cited.

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The proforma at column 11 requires the date of occurrence of vacancy to be specified. What is specified is only the date of occurrence of the first vacancy which is on 28.12.2016. A candidate was also advised in the said vacancy arising on LWA. As far as the retirement vacancy is concerned, there is absolutely no possibility of any advice being issued because the retirement is after expiry of the ranked list. The rank list itself was published for Senior Lecturer in Opthalmology on 27.3.2013. After various extensions to the validity period, the list admittedly expired on 30.12.2016.

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On the question of the other two anticipated vacancies, learned counsel for the respondent takes us through the Government orders which created such vacancies, first of which is by Annexure A6. By Annexure A6, a post of Associate Professor of the Ophthalmology Department shifted to the newly created Family Medicine and Emergency Critical Care in Kozhikode Medical College was restored. One Dr.Ranjini Kottancherry who was in Kottayam Medical college was

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OP(KAT)444/17

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also transferred to occupy the post of Associate ProfessorOphthalmology; restored at Kozhikkode. Simultaneously, to take care of the loss of post in Family Medicine and Emergency Critical Care in Kozhikkode, a post of Associate Professor in the Dermatology & Virology department was transferred there temporarily. This does not create any post of Assistant Professor in Ophthalmology.

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The other vacancy asserted is of the deputation vacancy which would arise on implementation of Annexure A8. Annexure A8 considered the question of appointment of Assistant Professor in Ocular Electro Physiology at Regional Institute of Ophthalmology. Considering the fact that there is no rule for making such appointment, it was decided to make deputation to the post of Associate Professor in the Regional Institute of Ophthalmology. The contention of the applicant is that if such a deputation was made, there would have arisen a vacancy in the Medical Education Department in the post of Assistant Professor. However, it is an admitted fact that there was no deputation made before the expiry of the rank list. Therefore, there was no vacancy in the Medical Education Department to which an advice could have been made. In such circumstances, there cannot be

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any ground for seeking appointment or issuance of advice in the said vacancies.

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OP(KAT)444/17

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In the result, the original petition is allowed setting aside the

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order of the Tribunal. No order as to costs.

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Sd/-

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K.VINOD CHANDRAN JUDGE

Sd/-

V.G.ARUN JUDGE

vgsx

OP(KAT)444/17

APPENDIX

PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF THE RANKED LIST FOR THE POST OF SENIOR LECTURER IN OPHTHALMOLOGY IN MEDICAL EDUCATION DEPARTMENT. ANNEXURE A2 TRUE COPY OF THE APPOINTMENT CHART ISSUED BY THE 3RD RESPONDENT. ANNEXURE A3 TRUE COPY OF THE LETTER DATED 30.12.2016 SENT BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. ANNEXURE A4 TRUE COPY OF THE RELINQUISHMENT LETTER DATED 2.11.2016 SENT BY DR. CHINNY MARY ABRAHAM TO THE 3RD RESPONDENT. ANNEXURE A5 TRUE COPY OF THE RELINQUISHMENT LETTER DATED 24.11.2016 SENT BY DR.MARY O.V. TO THE 3RD RESPONDENT. ANNEXURE A6 TRUE COPY OF THE G.O(RT) NO. 3392/2016/H & FWD DATED 28.12.2016 ISSUED BY THE 1ST RESPONDENT. ANNEXURE A7 TRUE COPY OF THE G.O(MS) NO.64/2014/H & FWD DATED 25.02.2014. ANNEXURE A8 TRUE COPY OF THE LETTER N.30273/B3/14/H & FWD DATED 25.11.2014 SENT BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT. ANNEXURE A9 TRUE COPY OF THE LETTER NO.238/2016/DIO/TVPM DATED 28/12/2016 SENT BY THE DIRECTOR, REGIONAL INSTITUTE OF OPHTHALMOLOGY TO THE 2ND RESPONDENT. ANNEXURE MA1 TRUE COPY OF APPOINTMENT CHART FOR THE POST OF ASSISTANT PROFESSOR(SENIOR LECTURER) IN OPTHALMOLOGY FOR ADVICE DATED 30.01.2017 ISSUED BY THE 3RD RESPONDENT. ANNEXURE MA2 TRUE COPY OF APPOINTMENT CHART FOR THE POST OF LECTURER(VARIOUS) FOR ADVICE DATED 30.01.2017 ISSUED BY THE 3RD RESPONDENT.

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OP(KAT)444/17

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EXHIBIT P1. TRUE COPY OF THE OA (EKM) 394/2017 WITH ANNEXURES. EXHIBIT P2. TRUE COPY OF THE MISCELLANEOUS APPLICATION WITH ANNEXURES. EXHIBIT P3. TRUE COPY OF THE OA (EKM) 394/2017 DATED 7/7/2017. EXHIBIT P4. TRUE COPY OF THE PROFORMA REPORTING VACNACNY ALONG WITH THE COVERING LETTER DATED 30/12/2016. EXHIBIT P5. TRUE COPY OF THE CIRCULAR NO.18/2007 DATED 6/6/2007.

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RESPONDENT'S/S EXHIBITS:

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ANNEXURE R1(A) TRUE COPY OF THE REJOINDER FILED BY THE 1ST RESPONDENT/APPLICANT IN THE O.A.

Kerala Public Service Commission v. Dr.Ansu.T.James

Case brief

What is this about?

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Kerala Public Service Commission v. Dr.Ansu.T.James

Case brief

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What did the court decide?

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