Kerala High Court
K.K. Marakkar vs Kerala Public Service Commission on 11 November, 1986
Equivalent citations: (1987)IILLJ101KER
JUDGMENT Malimath, C.J.
1. This appeal is against the judgment of the learned single Judge in O.P. No. 3815 of 1981. The Public Service Commission invited applications from qualified candidates in the Public Works Department for selection to the post of Assistant Engineers (Civil). It is clear from the notification Ext. P2 that 1st and IInd grade Overseers/Draftsmen who had not less than two years service in the Public Works Department were eligible to apply for the post. The appellant was not called for the interview, though, according to him, he is duly qualified. He therefore approached this Court in O.P. No. 3815 of 1981 and obtained an interim order directing the Public Service Commission to interview him. Accordingly he has been interviewed and in the list of 8 selected candidates he has been assigned the 7th rank provisionally. It is not disputed that if the appellant was eligible he would be entitled to secure the appointment, as there were more than 8 vacancies at the relevant point of time.
2. The Public Service Commission took the stand that the appellant does not have the requisite service of two years firstly on the ground that the service relied upon by the appellant is not continuous and secondly on the ground that the service rendered by the appellant as a provisional employee cannot be regarded as service. It is not disputed that the appellant was a Draftsman Grade II in the Public Works Department as a provisional employee from 30th October 1970 to 1st November 1971. It is also not disputed that he was a regularly appointed Draftsman, Grade I in the Public Works Department from 4th March 1980 to 27th April 1981 when he made the application. So tar as the experience in the cadre of Draftsman, Grade I is concerned, it was regular service. The stand taken by the Public Service Commission is that the experience as Draftsman, Grade II from 30th October 1970 to 1st November 1971 cannot be taken into account because it is provisional service and also because the service is not continuous for a period of two years. The learned single Judge relying upon the earlier decision of this Court was inclined to take the view that the service from 30th October 1970 to 1st November 1971, though rendered as a provisional employee is service and should be taken into account. But the learned single Judge dismissed the petition of the appellant on the ground that though the service is for the requisite period of two years, it is not continuous. The appellant was not holding the post of Draftsman, Grade II or Grade I from 1st November 1971 to 4th March 1980 with the result that there was break in service. It is on the ground that the service is not continuous that the learned single Judge dismissed the original petition. Hence this appeal.
3. The relevant portion of the first proviso to Note 3 below Rule 3 of the Special Rules for the Kerala Engineering Subordinate Service (General Branch) with which we are concerned, reads:
that in the case of First and Second grade Draftsmen/Overseers they should have rendered not less than two years service as First and Second Grade Overseers....
The rule does not expressly require that the I service should be continuous. No factors justifying inferences that the service should be continuous have been placed for our consideration. Hence in our opinion there is no justification for adding the word "continuous". That is also the view expressed by a learned Judge of this Court in Elyamma v. District Educational Officer 1965 K.L.T. 1185, wherein it is observed that the plain meaning of Rule 8 of Chapter XXVII of the Kerala Education Rules, 1959 considered in that case does not justify adding the word "continuous" to the rule. In other words, in the absence of good reasons it is not possible to add the word "continuous" to the word "service" used in the rule.
4. It was however contended by Shri Kelu Nambiar, the learned Counsel for the Public Service Commission, that the finding recorded by the learned single Judge that the provisional service can be taken into account is not correct. What is stated in the rule extracted above is that the candidates should have two years service in the specified position. The rule does not say as to whether the said service should be in a regular appointment, permanent appointment, temporary appointment, or provisional appointment. If the rule-making authority felt that it was only regular service and not the provisional service that should be taken "into account, proper expression in that behalf would have been used. We find that the rule-making authority has used such an expression when it wanted to qualify the nature of the service. The rule regarding recruitment to the Public Works Department to the cadre of Attenders was amended in the year 1980 by Notification G.O. (P) No. 81/80/PW & D dated 10th June 1980, prescribing under Clause B five years' regular service under the Government. It thus becomes clear that whenever the rule-making authority felt that it is only regular service that should count, it has chosen to use the expression 'regular'. As such an expression has not been used and that the only expression used is 'service', we find no justification to read into the rule the prefix 'regular'. That is precisely the view taken by this Court in the decision reported in 1981 K.L.T. 633 between Bhaskaran v. State of Kerala. That was also a case of the Public Works Department and considered the category of the First Grade Surveyors. It has been observed in that case that the only word used is service, which means service of any kind would entitle the petitioner for being promoted if he has the requisite service to his credit. It is pointed out that unless the service is qualified being either as regular service or officiating service, an officer claiming the benefit of promotion will be entitled to his service when the word used is only 'service'. It is pointed out that the word 'service' without qualification means service of any kind and that service has to be taken into account for the purpose of qualification and only for that purpose. The context in which the word 'service' has been used does not justify any other inference either. Emphasis of the rule appears to be on the persons concerned having become familiar with the duties of the particular post for a particular period. Therefore, the question as to whether that familiarity or experience has been acquired by holding the post on a provisional, regular or other basis is not of any materiality. We have therefore no hesitation in taking the view that the expression 'service' used in the rule in question does entitle the appellant to count the service rendered by him on a provisional basis. If the service rendered by the appellant as a provisional employee along with the service rendered by him on a regular basis is taken into account, it is not disputed that the appellant would have the requisite period of two years of service and he would thus be fully qualified for the post. Hence it has to be held that the appellant was duly qualified and that the Public Service Commission was not right in not inviting the appellant for interview. The appellant has been interviewed in pursuance of the interim direction issued during the pendency of the Original Petition. He has been included in the rank list as serial No. 7, provisionally, in the list of 8 selected candidates. As admittedly, there were more than 8 vacancies it is obvious that the appellant is entitled to secure the appointment. It was pointed out that not only the person below the appellant has been appointed but several other persons have open appointed during the pendency of this litigation. None of these persons are parties before us. In the circumstances, it is just and fair to direct that the appellant shall be appointed and that he should be given rank for the purpose of seniority on the basis of the date on which he gets appointment in pursuance of the direction to be issued in this case.
For the reasons stated above, this appeal is allowed, the judgment of the learned single Judge is set aside and the Original Petition is allowed. The 2nd respondent is hereby directed to appoint the appellant in the cadre of Assistant Engineer in the Public Works Department and to count his seniority in the said cadre from the date of his actual appointment to be made by the Chief Engineer. The Chief Engineer is directed to comply with this direction within two months from the date of receipt of this judgment by him.
Let photostat copy of this judgment be furnished to the counsel for the appellant, to the Government Pleader and to the counsel for the Public Service Commission, on usual terms.