Dismissed

Dr. Aswathi Joseph v. State of Kerala

Kerala HC14 Oct 2020OP(KAT)/276/2018

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's application seeking appointment to a Lecturer post. The Court held that vacancies reserved for the Latin Catholic community in the Assistant Professor list, which remained unfilled due to lack of candidates, could not be satisfied by appointing a candidate from the same community in the separate Lecturer list.

What did the court decide?

The original petition in the appeal filed against the Kerala Administrative Tribunal order was rejected and the impugned order was upheld.

Dr. Aswathi Joseph Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2020)

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE GOPINATH P.

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WEDNESDAY, THE 14TH DAY OF OCTOBER 2020 / 22ND ASWINA, 1942

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OP(KAT).No.276 OF 2018(Z)

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AGAINST THE ORDER DATED 04-06-2018 IN OA (EKM) 3066/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/APPLICANT:

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DR. ASWATHI JOSEPH AGED 29 YEARS, W/O. ROCKY JOHN, RESIDING AT : H.NO.19, ANASWARA, MALOORKUNNU COLONY, MARIKKUNNU P.O., CALICUT - 673012.

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BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.

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2 THE DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM - 695001.

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3 THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM - 695004.

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OTHER PRESENT:

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R1 & R2 BY ADV.SRI. T. RAJASEKHARAN NAIR-SR. G.P. R3 BY ADV.SRI. P.C. SASIDHARAN, SC, PSC.

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 01-10-2020, THE COURT ON 14-10-2020 DELIVERED THE FOLLOWING:

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O.P.(KAT)No.276/2018 -2-

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J U D G M E N T

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Dated this the 14^th day of October, 2020

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Gopinath, J:

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The petitioner herein was the applicant in OA (EKM) No.3066/2017 on the file of the Kerala Administrative Tribunal. She filed the original application praying for a direction to the Kerala Public Service Commission to forthwith advice her to the post of Assistant Professor/Lecturer in Paedodontics in the Medical Education Service. That original application was dismissed and the order thereon is now challenged before us.

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The Public Service Commission had issued a notification calling for applications for filling up the post of Assistant Professor in Paedodontics in the Medical Education Service. The prescribed educational qualification was a Post Graduate Degree (MDS) in Paedodontics from a recognized University approved by the Dental Council of India. It was further provided, in the notification, that in the absence of candidates having Post Graduate Degree (MDS) in Paedodontics, those having Bachelors Degree (Bachelor of Dental Surgery or ‘BDS’) will be considered for the post of Lecturer. Since two different and distinct qualifications were indicated and since the recruitment would be to different posts, the ranked list was prepared

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O.P.(KAT)No.276/2018 -3-

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separately, List-I containing the names of candidates having the necessary qualifications for the post of Assistant Professor and List-II having the names of the candidates who possessed the qualification for appointment as Lecturer. The petitioner was included in List-II.

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Sri.Elvin Peter, the learned counsel appearing for the petitioner would contend the Latin Catholic turn in List-I could not be filled, due to non-availability of candidates. He refers to the appointment chart prepared by the Public Service Commission which, is on record, to show that the turn of candidates belonging to the Latin Catholic community (22) was shown as having been set apart for being filled up from List-II ‘ on the expiry/exhaustion of List-I”. He contends that while the provisions of Rule 12A of the Public Service Commission Rules of Procedure, 1976 (Kerala) requires the Public Service Commission to prepare lists in two parts, there is no rule that the second list will be operated only after the expiry or exhaustion of List-I. The vacancy which arose on account of non-availability of a candidate to fill up the turn of the Latin Catholic’s in List-I, according to him, ought to have filled up by advising a candidate from list-II.

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O.P.(KAT)No.276/2018 -4-

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Sri. P.C. Sasidharan, learned counsel appearing for the Public Service Commission would contend that though there was a common notification, the posts of Assistant Professor and Lecturer are distinct and merely because the notification prescribed that in the absence of qualified candidates in List -I, the vacancies will be filled up from List-II does not mean that for satisfying the Latin Catholic turn, in the absence of a candidate belonging to that community in List-I, a candidate from List-II should be advised. According to him though the ranked list is prepared based on a single notification, ListI pertains to the category of Assistant Professor while List-II pertains to the category of Lecturers. He would state that only in a situation where there is a total lack of candidates entitled to be included in List-I would the question of operating List-II arise.

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We have considered the contentions raised by both sides. It is true that in Annexure-9 (a) which is the appointment chart for the post of Assistant Professor in Paedodontics, it is indicated that there are no Latin Catholic candidates in List-I and the said vacancy will be filled from List-II upon the expiry or the exhaustion of List-I. As can be seen from Annexure-A9 there were 50 candidates in List-I and 13 candidates in List-II. The petitioner is rank No.11 in List-II.

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O.P.(KAT)No.276/2018 -5-

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The turn of Latin Catholic community in List-I (roster point No.22) could not be filled up on account of non-availability of a Latin Catholic candidate. The question for consideration is whether that vacancy can be filled up by appointing a Latin Catholic candidate from the list prepared for appointment to the post of Lecturer. We would think not. The posts of Assistant Professor and Lecturer are distinct and different. Both have their rosters for applying the principles of reservation. The notification indeed indicates that in the absence of candidates with the qualification to be included in List-I those with BDS Degree will be considered. In our opinion, the word ‘qualification’ refers to educational and any other qualification which may be mandatory for inclusion in List-I and not to the nonavailability of candidates belonging to any particular community to fill up the reservation points. If the argument of the petitioner/applicant were to be accepted it would mean that a post reserved for Latin Catholic community in the cadre of Assistant Professor could be filled up and the community reservation satisfied by filling up that vacancy by appointment of a Lecturer belonging to that community. Paragraph 433 of the manual prepared by the Public Service Commission to the extent it is relevant reads as follows:-

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O.P.(KAT)No.276/2018 -6-

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“ In all cases where ranked lists consist of two parts viz, List-I of fully qualified candidates and List-II of less qualified hands to be considered in the absence of candidates with higher qualification, List II shall be operated only after List I is fully exhausted unless there is specific provision in the special rules concerned for advice on recruitment of candidates from List II against Reservation Turns which cannot be satisfied from List I for want of candidates of the respective communities in that List.”

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Our attention has not been drawn to any special provision in the Special Rules which provides for the advice of candidates from List II against Reservation Turns which cannot be satisfied from List I for want of candidates of the respective communities in that List. There cannot be a clubbing of two lists in the sense that in the absence of a candidate in List-I for filling up of a prescribed reservation point in List-I the same can be made by advising a candidate from List-II. The posts in question are different, the lists prepared are different, though there is only one notification. That apart such an interpretation will lead to the breakdown of the roster system as rosters have to be maintained separately for both categories of posts. Though the learned counsel for the petitioner/applicant would contend that those with necessary qualification for being appointed as Lecturer will be, on appointment upgraded to the post of Assistant

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O.P.(KAT)No.276/2018 -7-

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Professor on securing Masters Degree, that in our opinion cannot be a sufficient justification to suggest that the turn reserved for Latin Catholic's in List-I (Assistant Professor) can be filled up by candidates belonging to the very same community and included in List-II. The contention of the learned counsel for the petitioner, though attractive, cannot be accepted, in law. The original petition fails and is accordingly dismissed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

GOPINATH P.

JUDGE

AMG

O.P.(KAT)No.276/2018 -8-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF FILED BEFORE ADMINISTRATIV CAMP SITTING	THE THE E TR AT E	O.A.(EKM) NO.3066/2017 HON'BLE KERALA IBUNAL, THIRUVANANTHAPURAM, RNAKULAM.
ANNEXURE A1	TRUE COPY OF PSC.	THE	NOTIFICATION ISSUED BY THE
ANNEXURE A2	TRUE COPY OF APPLICANT.	THE	BDS CERTIFICATE OF THE
ANNEXURE A3	TRUE COPY OF OF THE APPLIC	THE ANT.	CERTIFICATE OF REGISTRATION
ANNEXURE A4	TRUE COPY OF THE APPLICANT	THE .	INTERNSHIP CERTIFICATE OF
ANNEXURE A5	TRUE COPY OF APPLICANT.Q	THE	MDS CERTIFICATE OF THE
ANNEXURE A6	TRUE COPY OF APPLICANT.	THE	RANK CERTIFICATE OF THE
ANNEXURE A7	TRUE COPY OF THE APPLICANT COLLEGE.	THE ISS	EXPERIENCE CERTIFICATE OF UED BY THE KMCT DENTAL
ANNEXURE A8	TRUE COPY OF PSC.	THE	SHORT LIST PUBLISHED BY THE
ANNEXURE A9	TRUE COPY OF PSC.	THE	RANK LIST PUBLISHED BY THE
ANNEXURE A9(A)	TRUE COPY OF DOWNLOADED BY OF THE 3RD RE	THE THE SPON	APPOINTMENT CHART APPLICANT FROM THE WEBSITE DENT.
ANNEXURE A10	TRUE COPY OF APPLICANT.	THE	SSLC CERTIFICATE OF THE
ANNEXURE A11	TRUE COPY OF CERTIFICATE I VILLAGE OFFIC	THE SSUE ER,	NON-CREAMY LAYER D TO THE APPLICANT BY THE CHEYVAYOOR.

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O.P.(KAT)No.276/2018 -9-

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EXHIBIT P2 TRUE COPY OF THE ORDER DATED 4.6.2018 IN O.A.(EKM) NO.3066/2017 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM, CAMP SITTING AT ERNAKULAM.

Dr. Aswathi Joseph v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr. Aswathi Joseph v. State of Kerala

Case brief

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