DAYANANDAN Vs. PUBLIC SERVICE COMMISSION

JUDGEMENT

(1.) The petitioner and respondents 2 and 3 were selected by the Public Service Commission for appointment as Assistants Grade-II. The petitioner was appointed pursuant thereto in the Kerala Secretariat on 12-3-1962, earlier than respondents 2 and 3. However, his service was terminated on termination of the vacancy. He reregistered afresh for appointment in the Public Service Commission and was appointed as Assistant in the Public Service Commission on 2-11-1963. In the meantime, respondents 2 and 3 were appointed as Assistants in the Public Service Commission by advice letters dated 31-3-1962 and 22-5-1962, and they commenced service on 10-4-1962 and 27-7-1962. By proceedings dated 8-5-1973, the petitioner was assigned rank above respondents 2 and 3. The second respondent filed O. P. No. 1589 of 1973 against he assignment of seniority in favour of the petitioner. This court by judgment dated 13-11-1975 allowed that Original petition, quashed the order dated 3-5-1973, and directed the Public Service Commission to pass orders afresh only after notice to the second and third respondents. The Public Service Commission, thereupon, issued notice to the parties, and after considering representations submitted by the concerned persons, passed Ext. P1 order, holding that the petitioner was bound to be ranked junior to respondents 2 and 3 in view of the second proviso to R.7 (b) of the Kerala State and Subordinate Services Rules. The petitioner seeks the issue of a writ of certiorari to quash Ext. P1 order in this Original Petition. According to him. his seniority had to be fixed under R.27(c) of the Kerala State and Subordinate Services Rules with reference to the date of earliest effective advice for appointment by the Public Service Commission, and by giving effect to the ranks contained in the select list.

(2.) It is the petitioner's case that he and respondents 2 and 3 were selected for appointment as Assistants without specifying the Department in which they were to be appointed. He got appointment earlier in the Government Secretariat only because of his higher rank in that list, and he had to be thrown out only because of his appointment in the Department not of his choice, but only due to his higher ranking. Respondent 2 and 3, who were lower in rank, and were advised later, could obtain continuous employment without interruption only because they were allotted to the Kerala Public Service Commission, Discontinuance of service in the case of the petitioner and continuance in the case of respondents 2 and 3 were unrelated to any circumstance within their control or any of their voluntary actions. It is submitted that it is unfair that this situation is taken advantage of by the respondents. Counsel also submits that the second proviso to R.7(b) of the Kerala State and Subordinate Services Rules was enacted only in 1977. It is submitted that though that amendment has retrospective effect from 17-12-1958, the petitioner cannot be posted with knowledge of the conditions contained therein, since, at the time when he was discharged from service in the Secretariat and he reregistered himself for fresh appointment, the provision which should have resulted in the denial of the benefit of R.27(c) of the Kerala State and Subordinate Services Rules was not available.

(3.) The Public Service Commission has filed a counter affidavit, in which the basic facts are not disputed. The only contention of the Commission is that, according to the present rules, the petitioner can have the benefit of earliest effective advice for appointment, only if he was reappointed in the same service after his discharge from service on termination of the vacancy and not if he had reregistered for fresh appointment and was appointed in a different Department. It is submitted that the petitioner had not waited for such reappointment in the same service in the same Department; but he reregistered, as a consequence of which, he was appointed in a different Department in a different service, but later than the date of commencement of service therein by respondents 2 and 3. Counsel for the Commission therefore submits that the petitioner cannot be given the benefit of R.27(c) of the Kerala State and Subordinate Services Rules to claim seniority ever respondents 2 and 3 in the above circumstances.