Baby Aisha.V vs Sukanya S on 24 November, 2025

[Cites 8, Cited by 0]

Kerala High Court

Baby Aisha.V vs Sukanya S on 24 November, 2025

The 4th respondent in O.A.No.94 of 2024 on the file of the Kerala Administrative Tribunal at Thiruvananthapuram has filed this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, challenging Ext.P1 order dated 27.08.2025 of the Tribunal in that original application, which was one filed by the 1st respondent herein- applicant invoking the provisions under Section 19 of the Administrative Tribunals Act, 1985, seeking an order to set aside Annexure A3 appointment chart dated 30.06.2023 for the post of Assistant Public Prosecutor Grade II in the Kerala State Prosecution Service, issued by the 3rd respondent Kerala Public Service Commission (KPSC), and the consequential advice and appointment of the 4th respondent to that post; a declaration that the action of the 1st respondent State and the 2nd respondent Director General of Prosecution in reporting a substantive vacancy on the basis of Leave Preparatory to Retirement (LPR) taken by the incumbent for a short period of 22 days is illegal; a declaration 2025:KER:89982 O.P(KAT)No.373 of 2025 4 that the advice and appointment of the 4th respondent against the retirement vacancy that arose on 01.06.2023 subsequent to the expiry of Annexure A2 ranked list published with effect from 14.05.2020 is illegal; and an order directing the 3 rd respondent KPSC to advice the applicant to the post of Assistant Public Prosecutor Gr.II against the turn of Hindu Nadar Community. The applicant in O.A.No.94 of 2024 is arrayed as the 1st respondent and respondents 1 to 3 in that O.A. are arrayed as respondents 2 to 4 in this O.P.(KAT).

2. Along with O.A.No.94 of 2024, the applicant has placed on record Annexures A1 to A10 documents. On behalf of the 2 nd respondent Director General of Prosecution, Ext.P5 reply statement dated 02.08.2024 was filed, opposing the reliefs sought for in the O.A., producing therewith Annexure R2(a) document dated 11.05.2023. On behalf of the 3rd respondent KPSC, Ext.P6 reply statement dated 20.05.2024 was filed. The petitioner herein (4th respondent in the O.A.) filed Ext.P7 reply statement dated 13.09.2024, opposing the reliefs sought for in the O.A., producing therewith Annexures R4(a) and R4(b) documents. The 1 st respondent herein (applicant in the O.A.) filed Ext.P8 rejoinder 2025:KER:89982 O.P(KAT)No.373 of 2025 5 dated 06.11.2024, producing therewith Annexures A11 to A15 documents. The said rejoinder was followed by Ext.P9 additional reply statement dated 23.12.2024 filed on behalf of the 2nd respondent.

3. After considering the pleadings and materials on record and also the submissions made at the Bar, the Tribunal, by Ext.P1 order dated 27.08.2025, allowed O.A.No.94 of 2024. Paragraphs 22 to 24 and also the last paragraph of Ext.P1 order read thus;

"22. In the light of the aforesaid provisions and the judgments, we are of the view that the action of the 1 st respondent in asking the PSC to change the date of occurrence of vacancy, as that of the date from which LPR was sanctioned, and asking the PSC to advise a candidate from the then existed ranked list does not have any statutory backing. The action of the PSC in making advice against such a vacancy, that too when the only proforma received, i.e., Annexure A6, merely on the basis of Annexure R2(a) letter, without even insisting for a fresh proforma would only indicate the extent of illegality on considerations contrary to rules. The reporting of the LPR vacancy and effecting advice against the said LPR vacancy and the advice and appointment made against such vacancy are unsustainable. The vacancy has arisen only on 01.06.2023. In which event the advice was liable to be made only from the Annexure A1 ranked list.

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23. In the result, it is declared that the advice and appointment of the 4th respondent based on Annexure A3 appointment chart is illegal. Annexure A3 appointment chart, to the extent it relates to the advice and appointment of the 4th respondent are set aside.

24. There shall be a direction to the 3rd respondent to advise the applicant from Annexure A1 ranked list against the turn of the Hindu Nadar Community within a period of one month from the date of receipt of a copy of this order. On the basis of such advice, the 2nd respondent shall issue orders appointing the applicant, within a further period of three weeks."

4. Feeling aggrieved by Ext.P1 order dated 27.08.2025 of the Tribunal in O.A.No.94 of 2024 the 4th respondent in the said original application is before this Court in this O.P.(KAT).

5. On 03.09.2025, when this O.P.(KAT) came up for consideration, notice before admission by special messenger was ordered to the 1st respondent-applicant. The learned Government Pleader was directed to get instructions from respondents 2 and 3 and the learned Standing Counsel for KPSC for the 4th respondent. By the order dated 03.09.2025, the Division Bench made it clear that till 09.09.2025, further action pursuant to Ext.P1 will stand 2025:KER:89982 O.P(KAT)No.373 of 2025 7 deferred. The said interim order was extended further on 09.09.2025 and 15.09.2025.

6. Heard arguments of the learned Senior Counsel for the petitioner-4th respondent, the learned counsel for the 1st respondent-applicant, the learned Senior Government Pleader for respondents 2 and 3 and also the learned Standing Counsel for KPSC for the 4th respondent.

7. The learned Senior Counsel for the petitioner-4th respondent contended that Ext.P1 order dated 27.08.2025 of the Tribunal is one passed without taking into consideration the legal and factual contentions raised by the 4th respondent. At the time of submission of Annexure R2(a) requisition, Annexure A2 ranked list was valid, since its validity expired only on 13.05.2023. Annexure A1 ranked list came into force only with effect from 23.08.2023. In the absence of any other valid ranked list for the post of Assistant Public Prosecutor Gr.II in the Kerala State Prosecution Service Department, the LPR vacancy which occurred on 11.05.2023 was filled up by advising the petitioner from Annexure A2 ranked list. The method for recruitment to the post of Assistant Public Prosecutor Gr.II is only direct recruitment.

2025:KER:89982 O.P(KAT)No.373 of 2025 8 Therefore, the provisions under Rule 5 of Part II Kerala State and Subordinate Service Rules (KS&SSR) have no application. On the incumbent taking LPR under Rule 72 Part I Kerala Service Rules (KSR), there occurred a vacancy, in which a candidate from Annexure A2 ranked list could be advised for appointment. Therefore, the advice and appointment of the petitioner as Assistant Public Prosecutor Gr.II, based on Annexure R2(a) requisition, is perfectly legal. The Tribunal went wrong in interfering with the advice and appointment of the petitioner. The decisions relied on by the Tribunal in Ext.P1 order have no application to the facts and circumstances of the case at hand.

8. On the other hand, the learned counsel for the 1st respondent-applicant contended that the Tribunal rightly interfered with the advice and appointment of the petitioner-4th respondent as Assistant Public Prosecutor Gr.II against the LPR vacancy. The advice and appointment of the petitioner against the retirement vacancy that arose on 01.06.2023, after the expiry of Annexure A2 ranked list, is illegal. The reasoning of the Tribunal in Ext.P1 order dated 27.08.2025, which is neither perverse nor patently illegal, warrants no interference in this original petition, 2025:KER:89982 O.P(KAT)No.373 of 2025 9 in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.

9. The learned Senior Government Pleader for respondents 1 and 2 contended that the LPR vacancy, which occurred on 11.05.2023, was reported to KPSC for advising a candidate from Annexure A2 ranked list, and accordingly, the petitioner-4th respondent was advised for appointment as Assistant Public Prosecutor Gr.II in the Kerala State Prosecution Service Department. The learned Standing Counsel for KPSC submitted that the advice of the petitioner was against a vacancy of Assistant Public Prosecutor Gr.II reported by the 2nd respondent Director General of Prosecution, during the validity of Annexure A2 ranked list. The learned Standing Counsel and also the learned Senior Government Pleader contended that the provisions under Rule 5 of Part II KS&SSR have no application, since the method for recruitment to the post of Assistant Public Prosecutor Gr.II is only direct recruitment.

10. KPSC issued a notification (Category No.659/2022) for appointment to the post of Assistant Public Prosecutor Gr.II. The applicant is included in the Annexure A1 ranked list published 2025:KER:89982 O.P(KAT)No.373 of 2025 10 pursuant to that notification, at Rank No.72 with the benefit of reservation for the Hindu Nadar Community. Annexure A1 ranked list came into force on 23.08.2023. The previous ranked list, Annexure A2, came into force on 14.05.2020, which expired on 13.05.2023, on the expiry of three-year validity. The petitioner was included in Annexure A2 ranked list, at Rank No.1 in the supplementary list for the Hindu Nadar Community. She was advised from Annexure A1 ranked list on 30.06.2023, as evident from Annexure A3 appointment chart, against the rotation, MR II 60 HN. In Annexure A3 appointment chart, as against the column for 'number of vacancies reported', it was stated as '3 AV (Out of which one vacancy due on 01.06.2023 reported as LPR on 11.05.2023 and advised as per order)'. Based on Annexure A4 application made under the Right to Information Act, 2005, the Public Information Officer in the office of the 1 st respondent informed the applicant, vide Annexure A5 reply dated 18.12.2023, that the vacancy against which the petitioner was advised was reported on 11.05.2023, and that it was a vacancy which arose on 11.05.2023, when Sri.B.Ummer, Assistant Public Prosecutor Senior Grade, who has to retire from service on 31.05.2023, 2025:KER:89982 O.P(KAT)No.373 of 2025 11 availed LPR from 10.05.2023. By Annexure A7 order dated 11.05.2023, the Director of Prosecution (Administration) accorded sanction to Sri.B.Ummer, who was working as Assistant Public Prosecutor (Senior Grade) at the Judicial First Class Magistrate Court, Manjeri, for availing commuted leave for 22 days from 10.05.2023 to 31.05.2023 as Leave Preperatory to Retirement (LPR), subject to his eligibility for availing LPR to be certified by the Accountant General (A&E), Kerala. The applicant, on coming to know about the advice and appointment of the petitioner as Assistant Public Prosecutor Gr.II, against the vacancy which was to arise on 01.06.2023, from Annexure A2 ranked list, which expired on 13.05.2023, submitted Annexure A10 representation dated 31.10.2023 before the Chairman of the PSC, requesting to cancel the advice of the petitioner and to advice her against the turn of the Hindu Nadar Community. Thereafter, the applicant approached the Tribunal by filing O.A.No.94 of 2024.

11. The post of Assistant Public Prosecutor Gr.II falls under category 5 in the Special Rules for the post of Director of Public Prosecution (Administration), Deputy Director of Prosecution and Senior Assistant Public Prosecutor, Assistant Public Prosecutor 2025:KER:89982 O.P(KAT)No.373 of 2025 12 (Senior Grade), Assistant Public Prosecutor Gr.I and Assistant Public Prosecutor Gr.II, 2018. As per Rule 3 of the Special Rules, the method of appointment to the post of Assistant Public Prosecutor Gr.II is by direct recruitment through Kerala Public Service Commission. As per Note (i) the ratio of 1:1:1 shall be maintained among the Assistant Public Prosecutor (Senior Grade), Assistant Public Prosecutor Gr.I and Assistant Public Prosecutor Gr.II.

12. Rule 13 of the Special Rules deals with temporary appointment. As per Rule 13, which starts with a non obstante clause, notwithstanding anything contained in Rules 3, 4 and 5, the District Collector may, in consultation with the District Police Chief and the Deputy Director of Prosecution of the District concerned, prepare a rank list of persons having the qualification prescribed in Rule 7 based on merit and eligibility and he may appoint temporarily from the list to a vacancy in the post under category 5, caused by the grant of leave to, or by reason of death or resignation or transfer of, or by promotion or creation of the post of, an Assistant Public Prosecutor Gr.II. The provisions of Rules 9 to 12, which deal with probation, training, test and 2025:KER:89982 O.P(KAT)No.373 of 2025 13 agreement, shall not apply to the persons so appointed. As per the first proviso to Rule 13, the appointment shall be made by the District Collector only in vacancies which are not likely to last for a period exceeding six months. In the case of other vacancies, which are likely to last for a period exceeding six months, the order of the State Government shall be obtained. As per the second proviso to Rule 13, which starts with a non obstante clause, notwithstanding anything contained in Rule 9, a person so appointed shall be regarded as a probationary Assistant Public Prosecutor. As per the third proviso to Rule 13 a person appointed under this Rule shall not, while holding office as Assistant Public Prosecutor, appear for the prosecution in any case in which he was previously connected in any way in the defense and after the termination of his temporary appointment, he shall not appear for the defense in any case in which he was connected in any way with the investigation or prosecution while he was holding office as Assistant Public Prosecutor.

13. A reading of the provisions contained in Rule 13 of the Special Rules would make it explicitly clear that the Special Rules deal with the temporary appointment of Assistant Public 2025:KER:89982 O.P(KAT)No.373 of 2025 14 Prosecutor Gr.II from a rank list prepared in terms of that Rule, against a vacancy caused by the grant of leave to an Assistant Public Prosecutor Gr.II or by reason of death or resignation or transfer of an Assistant Public Prosecutor Gr.II or creation of the post of Assistant Public Prosecutor Gr.II. The first proviso to Rule 13 provides such appointments only in vacancies which are not likely to last for a period exceeding six months. In cases where the vacancies are likely to last for a period exceeding six months, the order of the State Government has to be obtained.

14. Rule 5 Part II of KS&SSR deals with the method of recruitment. Rule 5 reads thus;

"5.Method of recruitment.- Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer, but is both by direct recruitment and by transfer,-

(a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by persons recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre;

(b) a person shall be recruited direct only against a substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the Special Rules referred to in clause (a); and 2025:KER:89982 O.P(KAT)No.373 of 2025 15

(c) recruitment to all other vacancies shall be made by transfer.

Note.- (1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies.

(2) The vacancies on account of leave and deputation with a duration of less than six months shall be treated as vacancies of short duration, provided, such vacancies with a duration of three months to six months should not be treated as vacancies of short duration, if the vacancies are likely to last long or new vacancies are likely to arise. (3) Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/ transfer is made and not to the vacancies existing at that time." (underline supplied)

15. A reading of the provisions under Rule 5 Part II KS&SSR would make it explicitly clear that the provisions under clauses

(a), (b) and (c) of Rule 5 has application when the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer, but is both by direct recruitment and by transfer. Note (1) of Rule 5, as well as Note (2), which deals with substantive vacancies and vacancies of short 2025:KER:89982 O.P(KAT)No.373 of 2025 16 duration, have no application when the normal method of recruitment to any service, class or category is either solely by direct recruitment or solely by transfer. In the instant case, as per the Special Rules in question, the method of appointment to the post of Assistant Public Prosecutor Gr.II is solely by direct recruitment through KPSC. Therefore, Note (1) of Rule 5 of Part II KS&SSR, as well as Note (2), which deals with substantive vacancies and vacancies of short duration, have no application in the recruitment to the post of Assistant Public Prosecutor Gr.II. The findings to the contrary in Ext.P1 order dated 27.08.2025 of the Tribunal in O.A.No.94 of 2024 cannot be sustained in law.

16. Chapter IX of Part I KSR deals with leave. Section II of Chapter IX deals with general conditions. As per sub-rule (1) of Rule 72, an officer on leave may not return to duty before the expiry of the period of leave granted to him, unless he is permitted to do so by the authority which granted him leave. As per sub-rule (2) of Rule 72, which starts with a non obstante clause, notwithstanding anything contained in sub-rule (1), an officer on leave preparatory to retirement shall be precluded from withdrawing his request for permission to retire and from 2025:KER:89982 O.P(KAT)No.373 of 2025 17 returning to duty, save with the consent of the authority empowered to appoint him. As per Note (1) to Rule 72, no formal cancellation of the unexpired portion of leave is necessary when an officer returns to duty before the expiry of his leave. The cancellation will be effected by the Audit Officer in the case of gazetted officers and by the Head of Office in the case of non- gazetted officers. Note (2) to Rule 72, prior to its omission by G.O.(P)No.645/1981/Fin. dated 13.10.1981 reads as follows;

"Note 2: (a) When an officer who has proceeded on leave preparatory to retirement before the date of compulsory retirement is required for employment during such leave in any post under Government and he is agreeable to return to duty, he will be recalled to duty and the unexpired portion of his leave from the date of rejoining duty will be cancelled. The leave so cancelled will be treated as leave refused, and subject to the provisions of Rule 75, it may be granted from the date of compulsory retirement of the officer. Such a recall will be treated as optional for the purpose of Rule 70.

(b) When an officer is employed in any post under Government, while he is on leave under Rule 75, he may continue to enjoy his leave concurrently, with such employment, but his leave salary, which may be drawn in addition to pay of the post in which he is employed, will be restricted to the amount of leave salary admissible for leave on half pay, reduced by the amount of pension and/or 2025:KER:89982 O.P(KAT)No.373 of 2025 18 pension equivalent of gratuity or other retirement benefits.

No leave will be earned in respect of such period of employment during leave. During such employment, he may also be granted dearness allowance and compensatory allowance, if any, admissible on the basis of pay. These allowances will neither be admissible on leave salary, nor will the leave salary be taken into account in calculating the allowances. [G.O.(P)152/1975/Fin. dated 22nd April, 1975]"

17. On the question as to whether a regular vacancy arises on the date on which a person proceeds on leave prior to his retirement under sub-rule (2) of Rule 72 of Part I KSR was considered by a Division Bench of this Court in Bhaskaran v. Viswanathan [2000 (2) KLT 64]. The issue involved in the said case was whether, on the Headmaster of an institution being granted special leave in terms of Rule 63, Chapter XIVA of the Kerala Education Rules (KER), a vacancy arises. In the said decision, after referring to the provisions in sub-rule (2) of Rule 72 of Part I KSR, the Division Bench held that the decision of a learned Single Judge in Ponnamma v. Government of Kerala [1991 (2) KLT 344] cannot be treated as an authority to support the stand that a regular vacancy arises on the date on which the person proceeds on leave prior to his retirement, particularly, 2025:KER:89982 O.P(KAT)No.373 of 2025 19 when there is no legal bar on his rejoining duty with the consent of the concerned authority.

18. In Kavitha V. Kurup v. A.K. Jayasree and others [2022:KER:1166], a Division Bench of this Court held that the nature of the vacancy that existed in the post of H.S.A. (Hindi) during the period from 01.06.1998 to 30.06.1998 was materially different from the vacancy that arose in the post immediately thereafter, with effect from 01.07.1998. While the former vacancy was a leave vacancy in the post, consequent to the earlier incumbent proceeding on leave preparatory to retirement, the vacancy that existed with effect from 01.07.1998 was a substantive vacancy consequent to the retirement of the earlier incumbent. For the purposes of seniority, it is the substantive vacancy to which a person is appointed that has to be reckoned, and when so reckoned, vis-a-vis the writ petitioner and the appellant, the date of substantive appointment of the writ petitioner to the post of H.S.A. must be seen as commencing only with effect from 01.07.1998 and not 01.06.1998.

19. In Madhu Anand H. v. State of Kerala and others [2022 (6) KHC 207], following the law laid down in Bhaskaran 2025:KER:89982 O.P(KAT)No.373 of 2025 20 [2000 (2) KLT 64] and Kavitha V. Kurup [2022:KER:1166], a learned Single Judge held that, for the purpose of seniority, it is the substantive vacancy to which a person is appointed that has to be reckoned. The substantive vacancy would arise only on the retirement of the former Headmaster on 31.05.2021 and not on 22.02.2021, on which date the former Headmaster availed Leave Preparatory to Retirement (LPR) from 22.02.2021 to 31.05.2021. In the said decision, the learned Single Judge has also referred to the provisions contained in Rule 7A, Chapter XIVA of the Kerala Education Rules (KER).

20. Sub-rule (2) of Rule 7A, Chapter XIVA of KER provides that posts that may fall vacant on the closing date shall not be filled up till the reopening date, except in the case of posts of non- vacation staff. As per sub-rule (3) of Rule 7A, prior to its substitution by G.O.(P)No.121/05/G.Edn. dated 16.04.2005, published in Kerala Gazette dated 27.04.2005, vacancies the duration of which is two months or less shall not be filled up by any appointment. After the substitution by the above order, sub- rule (3) of Rule 7A provides that vacancies, the duration of which is less than one academic year, shall not be filled up.

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21. In Bhaskaran [2000 (2) KLT 64], the Division Bench was dealing with a case in which the Headmaster of Nadavannur High School retired from service on 01.07.1992, on superannuation. He was granted special leave on full pay from 01.06.1992 in terms of the provisions contained in Rule 63 of Chapter XIVA of KER, which provides that if the date of superannuation of a Teacher falls within one month from the date of re-opening of the institution, he will cease to be on active duty on the date of re-opening. In such cases, he will be allowed special leave on full pay from the re-opening date till he gets superannuated. Both the appellant (Bhaskaran) and the 2nd respondent (Raghavan Nair) staked a claim to be appointed. The appellant acquired the eligibility for appointment on 14.04.1990, on completion of 50 years, whereas the 2nd respondent got the exemption only on 01.07.1992. If the vacancy in the post of Headmaster is to be taken to have occurred on 01.06.1992, the 2nd respondent is not entitled to claim the same, as he was not qualified with the help of an exemption on that day, even though he is senior to the appellant. In that event, only the appellant could claim promotion, as he had already acquired exemption from 2025:KER:89982 O.P(KAT)No.373 of 2025 22 the test qualification by 01.06.1992. The 1st respondent Manager (Viswanathan) took the view that the vacancy had arisen only on 01.07.1992, and on that basis, the 2nd respondent was promoted. The said view was not accepted by the authorities, and the appointment of the 2nd respondent was not approved.

22. In Viswanathan v. Director of Public Instruction [1993 (2) KLT 381], the learned Single Judge considered the question whether the Teacher, who has been granted special leave on full pay and has ceased to be on active duty on the date of reopening, ceases to be a member of the service. The learned Single Judge noticed that by virtue of the provisions contained under Rule 63, Chapter XIVA of KER, he may be disabled from coming to the school and functioning as a Headmaster. But, suppose a vacancy in the post of Assistant Educational Officer arises between 1st of June and 1st of July, can the teacher be denied promotion to the above post on the ground that he has ceased to be on active duty. Since the Teacher cannot be denied such promotion, the learned Single Judge concluded that the teacher should be treated as still in service, and a permanent vacancy can arise only when he retires on superannuation on 2025:KER:89982 O.P(KAT)No.373 of 2025 23 01.07.1992. Before the learned Single Judge, strong reliance was placed on the decision in Ponnamma [1991 (2) KLT 344] to contend that the vacancy in the post of Headmaster had arisen on 01.06.1992. After quoting paragraph 9 of the said decision, the learned Single Judge concluded that the decision in Ponnamma [1991 (2) KLT 344] cannot be understood as an authority to find that a regular vacancy would arise on the date on which the teacher proceeds on leave prior to his retirement. The issue raised in the case at hand has to be adjudicated in the light of the provisions contained in Rule 63, Chapter XIVA of KER. The learned Single Judge concluded that the permanent vacancy of a Headmaster arose in the school only on 01.07.1992 and not on 01.06.1992. The 2nd petitioner (Raghavan Nair), admittedly senior to the 4th respondent (Bhaskaran), was at that time available for promotion on obtaining exemption from the test qualification. Therefore, the 2nd petitioner should have been preferred for appointment to the post of Headmaster, instead of the 4th respondent. Therefore, the learned Single Judge set aside Exts. P1, P2, P5 and P7, and direct respondents 1 to 3 to approve the appointment of the 2nd petitioner (Raghavan Nair) as Headmaster 2025:KER:89982 O.P(KAT)No.373 of 2025 24 of the School, with effect from 01.07.1992.

23. In Bhaskaran [2000 (2) KLT 64], the Division Bench did not subscribe the view of the learned Single Judge in Ponnamma [1991 (2) KLT 344] that there is remote possibility of a person withdrawing the request for leave preparatory to retirement and rejoining duty with consent of authority competent to appoint, and same cannot be considered as a circumstance to hold that Rule 7A(3), Chapter XIVA of KER is attracted in such cases. The Division Bench noticed that There is no legal bar for such a request being made and when the provision provides that same can be done with the consent of the authority empowered to appoint the person, merely because there is possibility of such a person not seeking withdrawal, that cannot take away the effect of the provision enabling the withdrawal. Rule 7A(3), Chapter XIVA of KER stipulates that vacancies, the duration of which is two months or less, shall not be filled up by any appointment. In the case at hand the duration is certainly less than two months, in view of the provisions contained in Rule 63. Apart from that, the decision in question related to a case under Rule 62, Chapter XIVA of KER. The decision in that background cannot be treated as an 2025:KER:89982 O.P(KAT)No.373 of 2025 25 authority to support the stand that a regular vacancy arises on the date on which the person proceeds on leave prior to his retirement, particularly when there is no legal bar on his rejoining duty with the consent of the concerned authority. That being the position, the Division Bench found nothing illegal in the conclusion arrived at by the learned Single Judge in Viswanathan [1993 (2) KLT 381].

24. As held by the learned Single Judge in Viswanathan [1993 (2) KLT 381], though by virtue of the provisions contained under Rule 63, Chapter XIVA of KER, the Teacher may be disabled from coming to the school and functioning as a Headmaster, suppose a vacancy in the post of Assistant Educational Officer arises between 1st of June and 1st of July, the Teacher cannot be denied promotion to the above post on the ground that he has ceased to be on active duty. Such a Teacher should be treated as still in service, and a permanent vacancy can arise only when he retires on superannuation.

25. The law laid down by the learned Single Judge in Viswanathan [1993 (2) KLT 381], in the context of Rule 63, Chapter XIVA of KER, which stands affirmed by the Division Bench 2025:KER:89982 O.P(KAT)No.373 of 2025 26 in Bhaskaran [2000 (2) KLT 64], applies with equal force in the context of sub-rule (2) of Rule 72, Part I KSR, which deals with Leave Preparatory to Retirement (LPR). Though by virtue of the provisions contained under sub-rule (2) of Rule 72, Part I KSR, an Assistant Public Prosecutor Gr.II may be disabled from discharging his duties, suppose a vacancy in the post of Assistant Public Prosecutor Gr.I arises before the date on which he retires on superannuation, he cannot be denied promotion to the above post on the ground that he has ceased to be on active duty. Such an Assistant Public Prosecutor on Leave Preparatory to Retirement (LPR) should be treated as still in service, and a permanent vacancy can arise only when he retires on superannuation.

26. As already held hereinbefore at paragraph 15, Note (1) of Rule 5 of Part II KS&SSR, as well as Note (2), which deals with substantive vacancies and vacancies of short duration, have no application in the recruitment to the post of Assistant Public Prosecutor Gr.II, since as per the Special Rules in question, the method of appointment to the post of Assistant Public Prosecutor Gr.II is solely by direct recruitment through KPSC. Since an Assistant Public Prosecutor on Leave Preparatory to Retirement 2025:KER:89982 O.P(KAT)No.373 of 2025 27 (LPR) should be treated as still in service, and a permanent vacancy can arise only when he retires on superannuation.

27. In the instant case, the date of occurrence of the vacancy of Assistant Public Prosecutor Gr.II was on 01.06.2023, on account of the retirement of Sri.B.Ummer, Assistant Public Prosecutor (Senior Grade), who retired from service on 31.05.2023, and not on 11.05.2023, when he availed Leave Preparatory to Retirement (LPR) from 10.05.2023. The validity of Annexure A2 ranked list published by the KPSC had expired on 13.05.2023, even before the date of occurrence of the vacancy, i.e., 01.06.2023. Therefore, the advice of the petitioner-4th respondent as Assistant Public Prosecutor Gr.II, against the vacancy reported as LPR on 11.05.2023, was per se arbitrary and illegal. The said vacancy, which occurred on 01.06.2023, has to be filled by a candidate in Annexure A1 ranked list, which came into force with effect from 23.08.2023.

28. A reading of paragraphs 14 and 15 of Ext.P1 order dated 27.08.2025 in O.A.No.94 of 2024 would show that, after analysing the vacancy position, the Tribunal arrived at a conclusion that, on the basis of the Annexure A6 proforma, advice against 2025:KER:89982 O.P(KAT)No.373 of 2025 28 the vacancy of Sri.B.Ummer could have been made only after 01.06.2023, by which time the Annexure A2 ranked list had expired on 13.05.2023. Therefore, advice could have been made only from Annexure A1 ranked list. In the place of the 4 th respondent (petitioner herein), who has the benefit of communal reservation of the Hindu Nadar Community, it was the applicant (1st respondent herein), who was the first candidate from that community in the main list of Annexure A1 ranked list, who was to be advised in case normal course of events occurred based on Annexure A6 proforma. In Ext.P1 order, the Tribunal found that the contention of the respondents in O.A.No.94 of 2024 that the applicant (1st respondent herein), who is only a candidate included in a ranked list and therefore does not have any right to challenge the advice of the 4th respondent (petitioner herein), is absolutely unsustainable. The applicant has every right to be considered for appointment in accordance with the Rules, and any appointment in violation of the Rules would annihilate her fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. The above findings of the Tribunal are neither perverse nor patently illegal, warranting any interference in this original 2025:KER:89982 O.P(KAT)No.373 of 2025 29 petition, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.

29. In the above circumstances, we find absolutely no reason to interfere with the conclusion of the Tribunal in Ext.P1 order dated 27.08.2025 in O.A.No.94 of 2024 that the advice and appointment of the 4th respondent (petitioner herein) as Assistant Public Prosecutor Gr.II, based on Annexure A3 appointment chart, is illegal, and consequently, setting aside Annexure A3 to the extent it relates to her advice and appointment. The direction contained in Ext.P1 order, directing KPSC to advice the applicant (1st respondent herein) from Annexure A1 ranked list, as Assistant Public Prosecutor Gr.II, against the turn of the Hindu Nadar Community, and the further direction to the 2nd respondent (3rd respondent herein) to issue orders appointing the applicant (1 st respondent herein) as Assistant Public Prosecutor Gr.II, also warrants no interference in this original petition.

In the result, this original petition fails, and the same is accordingly dismissed; however, subject to the findings contained hereinbefore at paragraph 15 on the applicability of Note (1) of Rule 5 of Part II KS&SSR, as well as Note (2), on the recruitment 2025:KER:89982 O.P(KAT)No.373 of 2025 30 of Assistant Public Prosecutor Gr.II in the Kerala State Prosecution Service. KPSC shall comply with the directions contained in Ext.P1 order of the Tribunal, within a period of one month from the date of receipt of a certified copy of this judgment, and the Director General of Prosecution shall comply with the directions contained therein, within a further period of three weeks.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE AV 2025:KER:89982 O.P(KAT)No.373 of 2025 31 APPENDIX OF OP(KAT) 373/2025 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF RANKED LIST NO. 729/2023/SS VLL FOR CATEGORY NO. 659/2022 BROUGHT INTO FORCE WITH EFFECT FROM 23-08-2023 BY THE 3RD RESPONDENT Annexure A2 TRUE COPY OF RANKED LIST NO.

185/2020/SSIV FOR CATEGORY NO. 326/2017 PUBLISHED WITH EFFECT FROM 14-05-2020 BY THE 3RD RESPONDENT Annexure A3 A TRUE COPY OF THE ADVICE NO. RIG(2) 3275/2020/GW DATED 30-06-2023 ISSUED BY THE 3RD RESPONDENT Annexure A4 A TRUE COPY OF THE APPLICATION UNDER THE RIGHT TO INFORMATION ACT 2005 DATED 05- 12-2023 FILED BY THE APPLICANT Annexure A5 A TRUE COPY OF THE REPLY NO. S1/368/2023- HOME DATED 18-12-2023 SENT BY THE STATE PUBLICATION INFORMATION OFFICER IN THE OFFICE OF THE FIRST RESPONDENT TO THE APPLICANT Annexure A6 A TRUE COPY OF THE PROFORMA FOR REPORTING OF VACANCIES FOR THE POST OF ASSISTANT PUBLIC PROSECUTOR GRADE II DATED 09-12-

                         2022 SUBMITTED FROM THE OFFICE OF THE 1ST
                         RESPONDENT
Annexure A7              A    TRUE   COPY   OF    THE  ORDER   NO.
                         1186/A/08/DGP DATED 11-05-2023 ISSUED BY
                         THE 2ND RESPONDENT
Annexure A8              A TRUE COPY OF THE APPLICATION DATED 16-
                         10-2023 SUBMITTED BY THE APPLICANT TO THE
                         STATE PUBLIC INFORMATION OFFICER IN THE
                         OFFICE OF THE THIRD RESPONDENT
Annexure A9              A TRUE COPY OF THE REPLY NO. IDSI(2)
                         4782/2023/GW DATED 10-11-2023 SENT BY
                         STATE PUBLIC INFORMATION OFFICER JN THE
                         OFFICE OF THE 3RD RESPONDENT TO THE
                         APPLICANT
Annexure A10             A TRUE COPY OF THE REPRESENTATION DATED
                         31-10-2023 SUBMITTED BY THE APPLICANT TO
                         THE 3RD RESPONDENT
                                                   2025:KER:89982
O.P(KAT)No.373 of 2025            32

Annexure R2(a)           TRUE COPY OF THE LETTER NO. S1/165/2023-
                         HOME   DATED   11.05.2023    OF   THE   1ST
                         RESPONDENT TO THE 3RD RESPONDENT
Annexure R4(a)           TRUE COPY OF THE ADVICE LETTER NO.R1C
                         (2)3275/2020/GW DATED 30.06.2023 ISSUED
                         BY THE KPSC TO THE 4TH RESPONDENT.
Annexure R4(b)           TRUE COPY OF G.O.(MS) NO.184/2023/HOME
                         DATED 17.08.2023
Annexure A11             A TRUE COPY OF ORDER GO(P) NO. 63/92/FIN
                         DATED 10-01- 1992 ISSUED BY THE FINANCE
                         DEPARTMENT
Annexure A12             A   TRUE   COPY   OF   ORD&R    GO(P)   NO.
                         152/2020/FIN DATED 05- 11-2020 ISSUED BY
                         THE FINANCE DEPARTMENT
Annexure A13             A   TRUE   COPY   OF   ORDER    GO(P)   NO.
                         105/2022/FIN DATED 02- 09-2022 ISSUED BY
                         THE FINANCE DEPARTMENT
Annexure A14             A   TRUE   COPY   OF   ORDER    GO(P)   NO.
                         136/2022/FIN DATED 04- 11-2022 ISSUED BY
                         THE FINANCE DEPARTMENT
Annexure A15             A   TRUE   COPY   OF   ORDER    GO(P)   NO.
                         57/2023/FIN DATED 13- 06-2023 ISSUED BY
                         THE FINANCE DEPARTMENT
Exhibit P1               A TRUE COPY OF THE FINAL ORDER DATED 27-
                         8-2025 IN O.A. NO. 94/2024 ON THE FILES
                         OF THE KERALA ADMINISTRATIVE TRIBUNAL,
                         PRINCIPAL BENCH AT THIRUVANANTHAPURAM
Exhibit P2               A TRUE COPY OF ORDER NO. 2512/C/2014/DGP
                         DATED   1-9-2023   ISSUED    BY   THE   3RD
                         RESPONDENT
Exhibit P3               A     TRUE    COPY    OF      THE     ORDER

NO.2512/C/2014/DGP DATED 8-1-2024 ISSUED BY THE 3RD RESPONDENT Exhibit P4 A TRUE COPY OF O.A. NO. 94/2024 DATED 8- 1-2024 ALONG WITH THE ANNEXURES Exhibit P5 A TRUE COPY OF THE REPLY STATEMENT DATED 2-8-2024 SUBMITTED BY THE 3RD RESPONDENT Exhibit P6 A TRUE COPY OF REPLY STATEMENT DATED 20- 5-2024 SUBMITTED BY THE 4TH RESPONDENT Exhibit P7 A TRUE COPY OF THE REPLY STATEMENT DATED 13-9-2024 SUBMITTED BY THE PETITIONER Exhibit P8 A TRUE COPY OF THE REJOINDER DATED 6-11- 2025:KER:89982 O.P(KAT)No.373 of 2025 33 2024 SUBMITTED BY THE 1ST RESPONDENT TO EXHIBIT P5 REPLY STATEMENT Exhibit P9 A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 23-12-2024 SUBMITTED BY THE 3RD RESPONDENT Exhibit P10 A TRUE COPY OF THE DEPARTMENTAL TESTS CERTIFICATE DATED 14-3-2025 ISSUED BY THE 4TH RESPONDENT Exhibit P11 A TRUE COPY OF THE JUDGMENT DATED 11-7-

                         2013 IN T.A. NO. 6886/2012 AND CONNECTED
                         CASE   ON    THE   FILES    OF   THE   KERALA
                         ADMINISTRATIVE                      TRIBUNAL,
                         THIRUVANANTHAPURAM
Exhibit P12              A   TRUE   COPY    OF   THE    G.O.(RT)   NO.
                         2661/2025/HOME DATED 5-8-2025 ISSUED BY
                         THE 2ND RESPONDENT
Exhibit P13              A TRUE COPY OF ORDER NO.2593/H/14/DGP
                         DATED 30-8-2025 ISSUED BY THE DIRECTOR OF
                         PROSECUTION (ADMN), KERALA
Exhibit P14              A   TRUE   COPY    OF   THE    CIRCULAR   NO.
                         1634/ADV.C3/99/P&ARD      DATED     18-2-1999
                         ISSUED    BY   THE    CHIEF    SECRETARY   TO

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