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2002 DIGILAW 719 (KER)

K. R. Anilkumar v. State of Kerala

2002-11-07

K.A.ABDUL GAFOOR, R.BASANT

body2002
Judgment :- Abdul Gafoor, J. Pursuant to Ext.P3 notification issued by the Public Service Commission for selection to undergo Rangers Course 2001-03, the appellants and respondents 4 onwards applied for selection. The appellants were not included in the top of the list. Therefore they did not have the chance of being selected for the course. They contended that few among the respondents 4 onwards included above them in the list did not have the eligibility for being included in the rank list Ext.P4, for being admitted to the course as they were not either approved probationers or full members, in tune with Ext.P3 notification. The appellants challenged, therefore their inclusion in Ext.P4 list. The challenge did not succeed. Original Petitions were dismissed. Therefore these Writ Appeals. 2. From para 1 of the impugned judgment it is seen that the counsel and parties have agreed before the learned single Judge that the learned single judge need consider only one point namely. “Whether approved probationers alone can be sent for training or whether the probationers could also be included in Ext.P5 ranklist, if they are otherwise eligible and meritorious. The learned single Judge answered the latter part of the question in the affirmative and found that the probationers are also eligible to be included in the rank list prepared by the Public Service Commission and eligible for the training, even if they had not completed probation. 3. This judgment is impugned relying much on the note appearing under para 11 of Ext.P3 notification issued by the Public service Commission, which reads as follows: Notes:- Physically handicapped candidates are not eligible to apply for this training course. The candidates holding the post of foresters/Deputy Rangers in the Kerala Government Service on a regular basis and who are approved probationers/ Full members in the respective category shall submit the application along with a service certificate showing the service particulars of the applicant in the form appended. 4. It is contended on the strength of this stipulation that only approved probationers and full members and not probationers are eligible for applying for the course. The learned single Judge scanned through the relevant rules namely Kerala Forest Subordinate Service Rules and the rules issued by the Government of India with regard to qualification for admission to the Course(Ext.R5(a) and different stipulations in Ext.P3 notifications to come to the conclusion that probationers are also included. The learned single Judge scanned through the relevant rules namely Kerala Forest Subordinate Service Rules and the rules issued by the Government of India with regard to qualification for admission to the Course(Ext.R5(a) and different stipulations in Ext.P3 notifications to come to the conclusion that probationers are also included. It is now agreed before us that the selection procedure is in accordance with Rule 10 of the said Rules. The said rule does not debar any probationer from being selected to the departmental quota of 25%. On the other hand the qualification also does not exclude a probationer being selection for the course. The only impediment is that before effecting promotion he should have completed the probation. Ext.R5(a), which contains the relevant criteria stipulated by Govt. of India, also does not debar the probationer being considered for selection to the course in question. Para 11 of Ext.R5(a) is with regard to the selection of candidates. It is also not disputed that any of the candidates does not possess the qualification stipulated in para 18.0 of Ext.R5(a). That paragraph also does not disentitle any probationer to apply for the course in question. Even going by Ext.P3 as well, we do not find any stipulation to exclude a probationer. A proforma of certificate is also appended to Ext.P3 notification. Item No5. thereof indicates that the authority concerned shall certify the service details including the total service and the duration that one had spent in each post in the department with scale of pay and address. Item No.6 thereof further makes it mandatory for the controlling authority concerned to indicate whether the incumbent is a probationer/approved probationer/full member. Of course in the note read above, the word “probationer” is missing. At the same time it is insisted that the candidate shall be a regular appointee. Respondents 4 to 10 are regular appointees, admittedly. It is in the absence of the word probationer along with the words approved probationer/full member in the note that the learned single Judge came to the conclusion that it may be possible to conclude in both ways that the probationer is included or the probationer is not included. In that situation the learned single Judge took aid from the rules that we have discussed including Ext.R5(a) to give Ext.P3 a character of intravis of the said rules. In that situation the learned single Judge took aid from the rules that we have discussed including Ext.R5(a) to give Ext.P3 a character of intravis of the said rules. In such circumstances the view taken by the learned single judge cannot be said to be faulty. It is contended by the appellant that few among respondents 4 to 10 who did not really complete the period of probation when they did prefer application, had obtained certificates from the controlling authority as if they had completed the period of probation and has become approved probationer and submitted application. Therefore they cannot contend that the rules or the Public Service Commission did not insist that the applicant shall be atleast approved probationers. But no evidence has been produced to substantiate this allegation except to refer to certain report of the Government pointing out that there were certain manipulations. But the Government did not take any action based on such report. If there had been a contention that fraud had been committed by one among the respondents 4 to 10. It was incumbent on the appellants to call for the said certificate and substantiate that there had been any fraud committed by them to exclude from the candidature on that ground. In the absence of such necessary proof we cannot now hold in this appeal under Sec.5 of the Kerala High Court Act that few among the contesting respondents were to be excluded on the ground of fraud. More over as already mentioned above this contention has been given up before the learned single Judge where the parties agreed to consider only the issue centering the eligibility of probationers to submit application. Therefore appeals fail and are dismissed.