(S.A. Bobde and L. Nageswara Rao, JJ.)
Mathew David _____________________________________ Appellant;
v.
State of Kerala and Others _________________________ Respondent(s).
Civil Appeal No. 2800 of 2018 [Arising out of SLP(C) No. 6525/2015], decided on March 13, 2018
The Order of the court was delivered by
Order
1. Leave granted.
2. This appeal is preferred against the judgment of the High Court of Kerala in O.P. (KAT) No. 379 of 2014 by which the judgment of the Kerala Administrative Tribunal (for short, “the Tribunal” in OA(EKM) No. 636 of 2014 was upheld. The Tribunal dismissed the OA filed by the appellant on the ground of delay and laches.
3. An advertisement was issued by the Kerala Public Service Commission on 27.10.1998 for filling up of two posts of Pharmacist (Homoeopathy). During the process of selection, a rank list was prepared on 16.04.2002, the validity of which was for a period of three years. The names of Kumari Anitha and Sri Sathyavrathan were shown at serial Nos. 1 and 2 respectively in the rank list. The appellant was included in the rank list at serial No. 3.
4. Aggrieved by the non selection and appointment as Pharmacist, the appellant along with Jayachandran P., approached the High Court of Kerala. The High Court refused to interfere with the selection and to grant relief to the appellant and Jayachandran P.. The Writ Appeal filed by them was also rejected. Thereafter, Jayachandran P., filed W.P. No. 35654 of 2009 in the High Court after obtaining information under the Right to Information Act regarding the existence of more than two vacancies during the currency of the rank list. The writ petition filed by Jayachandran P. was dismissed. However, the Division Bench allowed the appeal filed by Jayachandran P. and directed his appointment in a vacancy that existed during the currency of rank list dated 16.04.2002.
5. Pursuant to the judgment of the High Court in favour of Jayachandran P., the appellant approached the Kerala Administrative Tribunal, Thiruvananthapuram Bench by filing O.A.(EKM) No. 636 of 2014 seeking for a relief similar to that granted to Jayachandran P. who was at Rank No. 2 in the rank list. The Tribunal refused to grant relief to the appellant on the ground of delay and laches. The High Court affirmed the order of the Tribunal.
6. We have heard learned counsel for the parties and perused the material on record. Shri G. Prakash, learned counsel for the State referred to the counter affidavit filed by the Government in which the vacancy position was mentioned. Apart from Kumari Anitha at Serial No. 1 and Sathyavrathan at Serial No. 2 of the rank list, three more persons at Serial Nos. 5, 6 and 21 of the rank list were appointed as per the direction of the High Court. It was mentioned that Shri Jayachandran P. was also appointed pursuant to a direction given by the High Court in W.P. No. 35654 of 2009. There is no serious dispute about the existence of vacancies of Pharmacist (Homeopathy). Dr. Kylasanath Pillai, learned senior counsel appearing for the appellant submits that the appellant was periodically being engaged as Pharmacist (Homeopathy) on daily wage basis. We do not agree with the High court that the appellant is not entitled for the relief which was granted to a person similarly situated to him, i.e, Jayachandran P. on the ground of delay. The appellant resorted to redressal of his remedy in 2014 immediately after he learnt about the relief granted to Jayachandran P.
7. In view of the aforementioned facts, we hold that the appellant is entitled for appointment to the post of Pharmacist (Homeopathy). The Government of Kerala shall appoint the appellant as Pharmacist (Homeopathy) within a period of four weeks from today. The appellant shall not be entitled for any seniority, back wages or any other benefits prior to the date of his appointment.
8. The appeal is allowed accordingly.
Petition(s) for Special Leave to Appeal (C) No(s). 6525/2015
Mathew David _____________________________________ Appellant
v.
State of Kerala and Others _________________________ Respondent(s)
(With prayer for interim relief)
Date: 13-03-2018 This petition was called on for hearing today.
(Before S.A. Bobde and L. Nageswara Rao, JJ.)
For Petitioner(s) Dr. Kylashnath Pillai, Sr. Adv.
Mrs. V.S. Lakshmi, Adv.
Mr. A. Venayagam Balan, AOR
For Respondent(s) Mr. G. Prakash, AOR
Mr. Jishnu M.L., Adv.
Mrs. Priyanka Prakash, Adv.
Mrs. Beena Prakash, Adv.
Mr. Vijay Shankar V.L., Adv.
Mr. Vipin Nair, AOR
Mr. P.B. Suresh, Adv.
Mr. Abhay Pratap Singh, Adv.
UPON hearing the counsel the Court made the following
ORDER
9. Leave granted.
10. The appeal is allowed in terms of the signed order.
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