JUDGMENT K.A. Abdul Gafoor, J. 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. 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.P-3 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. 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 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). 4. Apart from the above two aspects, by Ext. P-3 the 3rd respondent is placed over the petitioners, without issuing notice to any of them. It is true that for preparing a select list the incumbents need not be given an opportunity of being heard or the principles of natural justice need not be followed. 4. Apart from the above two aspects, by Ext. P-3 the 3rd respondent is placed over the petitioners, without issuing notice to any of them. It is true that for preparing a select list the incumbents need not be given an opportunity of being heard or the principles of natural justice need not be followed. But, once the select list has been prepared and published and a variation is felt necessary, necessarily, the incumbents to be affected shall be given an opportunity. This is the minimum principle of fairness to avoid arbitrariness and ensure equality of opportunity and equality before law. In the decision reported in Mukundan v. State of Kerala 1975 KLT 682 , His Lordship Justice Balakrishna Eradi, as he then was, held as follows: "Ordinarily no person can claim a right to be heard before a Departmental Promotion Committee takes a decision as to whether or not his name should be included in a list of officers selected for promotion to a higher category on the basis of merit and ability. But, when once such a list has been duly drawn up and published in the Gazette any action for the removal of the name of any person from such a list particularly when it is taken on the basis of a representation made by a rival candidate, who puts forward a preferential claim for inclusion in the listen the basis of alleged Seniority over the person whose name was originally included, would undoubtedly attract the applicability of the principles of natural justice since as a result of the proposed action the person, whose name is sought to be deleted from the list wherein it was originally included, will undoubtedly be visited with serious adverse civil consequences. Further, when any adjudication regarding the inter se seniority as between two Government servants is conducted pursuant to the representation made by one of them complaining that he was being regarded as the junior amongst the two, the principles of elementary justice and fair play require that a final decision should be taken in the matter only after affording a hearing to the party whose seniority is being challenged." His Lordship further held: "In the circumstances I have no hesitation to hold that the Departmental Promotion Committee and the State Government have acted in violation of the principles of natural justice." In Premkumar v. General Manager, Telecommunications 1982 KLT 643 , Chandrasekhar Menon, J. considering the implications in the matter of revision of select list held as follows: "The deletion of the petitioner's name from the select list without hearing him on the allegations on the basis of which the concerned authority thought it fit to do is clearly violative of the principles of natural justice. These principles which are to ensure fair play and prevent arbitrary action are alike applicable to judicial (or quasi judicial) as well as administrative functions. As Professor Wade says in his article on 'Unlawful Administrative Action-void or voidable', 83 Law quarterly Review Page 499 at 500, a public authority which acts unlawfully by violating natural justice is acting outside its powers. Lord Selborne Said as early as in the last century in Spackman v. Plumstead District Board of Works (1885) 10 Appeal Cases 229 that there would be no decision within the meaning of the statute if there was anything of that sort done contrary to the essence of justice. Failure to render hearing would make an administrative action void." Considering the power of Government to depart from the select list under exceptional circumstances in public interest, invoking R.28(b)(i)(8)(b) a Division Bench of this court held in Balakrishnan v. I. G. of Police ILR 1981 (1) Ker. 120 as follows: "No grounds at all were disclosed for the Government to take action to proceed to revise the select list of Circle Inspectors for the year 1961, and include the name of the 3rd respondent in the said list. The 3rd respondent himself had not filed any representation, challenging Exts. P-2 to P-5 lists. Neither any 'exceptional circumstances' nor consideration of 'public interest' have been disclosed for reviewing the list. Ext. The 3rd respondent himself had not filed any representation, challenging Exts. P-2 to P-5 lists. Neither any 'exceptional circumstances' nor consideration of 'public interest' have been disclosed for reviewing the list. Ext. P-13 notice which preceded the impugned action does not at all set out or disclose any of these considerations; and on the facts and the circumstances disclosed, there are no exceptional features or pressure of public interest to warrant interference with the select list. The Government's interference with the select list prepared in 1961 and its inclusion of the name of the 3rd respondent in the said list cannot be justified and was in excess of its limited powers." 5. Exhibit P-3 does not disclose that the petitioner, have been afforded an opportunity before the 3rd respondent was brought above them varying the ranking in Ext. P-2 select list. Exhibit P-3 also does not show that there was any exceptional circumstances warranting action by Government in public interest to depart from the select list. Nor, the Government had referred the issue again to the Public Service Commission. Therefore, the above decisions squarely applies to the facts of the case and Ext. P-3 cannot be sustained any more. Exhibit P-3 is therefore liable to be quashed and accordingly it is quashed. 6. Based on Ext. P-3, in the matter of further promotions the 3rd respondent has been preferred over the petitioners. This led to O.P. 6897/95. Exhibits P-7 and P-8 are consequential orders based on Ext. P-3 effecting promotion to the post of Associate Professor and posting of Head of Unit in medical colleges. When Ext. P-3 is bad, Exts. P-7 and P-8 in O.P. 6897/95 to the extent it gave seniority to the 3rd respondent in the promoted cadre are also equally bad. Consequently, the petitioners will be entitled to all the benefits of seniority over the 3rd respondent in the category of Assistant Professor (Medicines) and Associate Professor and all other entitlement including postings as Unit Chiefs in preference to the 3rd respondent. 7. It is true that the 3rd respondent has made a representation on 18th July 1991 obviously against Ext. P-2 select list. It is considered by the Government in Ext. P-3. 7. It is true that the 3rd respondent has made a representation on 18th July 1991 obviously against Ext. P-2 select list. It is considered by the Government in Ext. P-3. Therefore the Government may independently consider the representation with reference to the provisions contained in R.28(b)(i)(8)(a) and (b) and the time limit specified therein and refer it to D.P.C. if so addressed or pass appropriate orders after affording opportunity to the petitioners as well as the 3rd respondent. Quashing of Ext. P-3 and consequential orders will not stand in the way of consideration of the representation of the 3rd respondent in accordance with law. O.Ps. are accordingly allowed. No costs.