EAPEN SAMUEL Vs. STATE OF KERALA

JUDGEMENT

(1.) The 3rd petitioner in O.P. 4017/92 is the only petitioner in O.P. 6897/95. The petitioners and the 3rd respondent while working as Tutors in the medical college service were promoted as Assistant Professors (Medicine), at first instance on provisional basis. The post of Assistant Professor (Medicine) is a selection post. Therefore, regular appointment is from out of a select list prepared by the Departmental Promotion Committee in accordance with R.28(b)(i) of the General Rules in part II of the K.S. and S.S.R. Accordingly, though belatedly the Departmental Promotion Committee (D.P.C.) drew up a select list in its meeting held on 26th December 1988 and published in the gazette dated 14th April 1989, covering the vacancies right from 1971 to 1.986. That is Ext. P-L in O.P. 6897/95. This select list was revised by the D.P.C. itself in its meeting on 10th July 1990. The revised select list was published in the gazette dated 2nd October 1990. That is Ext. P-2 in O.P. 6897/95. In Ext. P-2 the petitioners are ranked as 53, 54 and 55 with assigned dates of vacancies arose on 25th October 1980. The 3rd respondent is ranked as 57 with assigned date of vacancy arose on 26th March 1981. Later, Government issued G.O. Ms. 23/92/M. and P.W.D. dated 14th February 1.992 to the effect that "the 3rd respondent is eligible for getting assigned the vacancy that arose on 1st December 1979 i.e. the first vacancy that arose after he became qualified". Ext. P-3 in O.P. 6897/95 and Ext. P-4 in O.P. 401, 7/92 is that order. The challenge is mainly against this order.

(2.) Exhibit P-2 is the revised select list prepared by the statutory authority for promotion to the category of Assistant Professors in the department of medicine assigning the vacancies to the incumbents concerned. The 3rd respondent has been assigned the vacancy that arose on 26th March 1981. He ranks below to the petitioners. Now, by Ext. P-3 (in O.P. 6897/95), Government have given the 3rd respondent a date 1st December 1979 far ahead of the petitioners. Can Government unilaterally re-assign a vacancy in the promoted cadre to the 3rd respondent over the petitioners, disregarding Ext. P-2 select list of the D.P.C., is the issue in question. R.28(b)(i) of the General Rules in K.S. and S.S.R. contains the procedure for the convening of the D.P.C., consideration of the candidates by the D.P.C., publication of the select list, complaints against the select list, revision of the select list and power of Government to depart from or to vary the select list. In accordance with Clause.8(a) of the said rules, a select list has been prepared as contained in Ext. P-1 in O.P. No. 6897/95. The said clause provides that any officer who has been superseded, can complain against that select list "within one month from the date of publication of the list". Obviously, there might have been some objections against Ext. P-L That is why Ext. P-2 revised select list was published by the D.P.C. as per Ext- P-2 in O.P. 6897/95. If anybody is aggrieved by that select list, certainly such person can again point out to the D.P.C. within one month of the publication of Ext. P-2 and it is for the D.P.C. to look into those complaints. Exhibit P-3 shows that it is based on a representation dated 18th July 1991 from the 3rd respondent that re-assignment of the vacancy in Ext. P3 had taken place. The representation was not within the time limit specified in Clause.8(a). It was far belated one. Even if it is belated and even if it is taken that as contended by the counsel for the 3rd respondent he filed it within one month from the date of knowledge of Ext. P-2, even then that representation can be considered only by the D.P.C. Exhibit P-3 shows that it is simply a Government order and the matter has not been referred to the D.P.C. nor, even Ext. P-2 revised select list of the D.P.C. is not taken note of at all. At any rate, Government have no power under Clause.8(a) of R.28(b)(i) of the General Rules to vary the ranking in a select list prepared by D.P.C. That is within the exclusive domain of the D.P.C. itself.

(3.) Of course, Clause.8(b) of R.28(b)(i) enables the Government to depart from the advice of the D.P.C. That shall be when "Government consider that they are exceptional circumstances which warrant a departure from the advice of the D.P.C. in public interest". No such exceptional circumstances in the public interest is spelt out from Ext. P-3. Even if there is such exceptional circumstances, "the D.P.C. shall be given a fresh opportunity to consider the proposals of the Government to revise the select list". It is not seen from Ext. P-3 that the D.P.C. has been addressed and the recommendation has been obtained. Government will get an opportunity to depart from the findings only when the D.P.C. decides it afresh after such opportunity is given. Then alone Government can depart from the advice of the D.P.C. and that has to be included in the annual report of the Public Service Commission. Above all, as per the proviso to Clause.8(b) the power of Government under this clause cannot be exercised after expiry of one year from the date on which the select list was prepared by the D.P.C. Exhibit P-2 select list was drawn up in a meeting dated 10th July 1990 brought in the form of a notification on 12th September 1990 and published in the Gazette on 2nd October 1990 whereas Ext. P-3 is dated 14th February 1992, far beyond the period specified in the proviso mentioned above. So, it cannot be taken that Ext. P-3 issued by Government is exercising the power under Clause.8 (b) of R.28(b)(i).