A SIVAPRASAD Vs. K P S C

JUDGEMENT

(1.) Question that the come up for consideration in this case is whether a Government servant who had taken leave without allowance subject to the conditions stipulated in Appendix XII-A of the Kerala Service Rules would be ineligible to apply for appointment by transfer to the category of Assistant Engineer (Civil) as per the Kerala Engineering Service (Civil and General Branch) Rules.

(2.) Public Service Commission published a notification in the Gazetted on 12-10-2004 for appointment by transfer against 10% quota of Assistant Engineers earmarked for in service candidate who are graduates in engineering. Petitioner who had the requisite qualification as prescribed under Special Rules submitted application on 10-11-2004. Petitioner was sanctioned leave by the Government vide GO(Rt.) No. 1017/05/WRD dated 31-8-2005 for five years from the date of avail, in order to take up employment abroad subject to all the conditions stipulated in Appendix XII-A of the Kerala Service Rules while he was worked as I Grade Draftsman in the Water Resources Department. Petitioner availed of leave on 13-9-2005. Petitioner was called for interview on 7-12-2005, though he was on leave without allowance, he attended the interview. While applying in response to the notification issued by the Public Service Commission he was working as I Grade Draftsman in the Water Resources Department. Public Service Commission later published a rank list Ext.P6. Petitioner was ranked as 16 in the list. Public Service Commission, however, issued Ext. P6(b) show cause memo to the petitioner to show cause why his name should not be deleted from the rank list. Relevant portion of the show cause memo reads as follows:

(3.) Sri. B. Gopakumar, learned Counsel appearing for the appellant submitted that the reasons stated by the Public Service Commission for deleting his name from the rank list cannot be sustained in law. Learned Counsel submitted reasons for deleting his name was that he was not in continuous service at the time of applying for the post as well as when he was called for interview by the Public Service Commission. Learned Counsel submitted, while applying for the post he was working as I Grade Draftsman, but when he was called for interview he was on leave without allowance. Counsel submitted, the mere fact that he has availed of leave without allowance, subject to the conditions stipulated in Appendix XII-A of KSR, the Government or the Public Service Commission cannot take away his statutory right in applying for the post of Assistant Engineer as per the Kerala Engineering Service (Civil and General Branch) Rules. Learned Counsel submitted that he has satisfied the conditions stipulated in the Special Rules for applying for appointment by transfer to the post Assistant Engineer. The Special Rules only says that a candidate must have rendered service under the Government for a minimum period of five years. Learned Counsel submitted that he has satisfied that condition and therefore he is fully qualified for applying for the post of Assistant Engineer as per Special Rules. Learned Counsel also submitted that Clause 4 of Appendix XII-A of the KSR would not apply in the case of petitioner since he is not seeking promotion to the post of Assistant Engineer. Method of recruitment to the post of Assistant Engineer is by recruitment by transfer. Learned Counsel submitted that even if he will lose all service benefits such as the earning of leave including half pay leave, pension, gratuity, increment etc. and also promotion chances, seniority in the higher grade, still he is eligible to apply for appointment by transfer to the post of Assistant Engineer since he has satisfied all the qualifications prescribed under the Special Rules and that Clause (4) of Appendix XII-A is not taken away that statutory right conferred on the petitioner.