Radhakrishnan, J.

Question that has come up for consideration in this case is whether a Government servant who had taken leave without allowance subject to the conditions stipulated in Appendix XII-A of the Kerala Service Rules would be ineligible to apply for appointment by transfer to the category of Assistant Engineer (Civil) as per the Kerala Engineering Service (Civil and General Branch) Rules.

2. Public Service Commission published a notification in a the Gazette on 12.10.2004 for appointment by transfer against 10% quota of Assistant Engineers earmarked for in service candidates who are graduates in engineering. Petitioner who had the requisite qualification as prescribed under Special Rules submitted application on 10-11-2004. Petitioner was sanctioned leave by the Government vide GO.(Rt.).No.1017/05/WRD dated 31-8-2005 for five years from the date of avail, in order to take up employment abroad subject to all the conditions stipulated in Appendix XII-A of the Kerala Service Rules while he was working as I Grade Draftsman in the Water Resources Department. Petitioner availed of leave on 13-9-2005. Petitioner was called for interview on 7-12-2005, though he was on leave without allowance, he attended the interview. While applying in response to the notification issued by the Public Service Commission he was working as I Grade Draftsman in the Water Resources Department. Public Service Commission later published a rank list Ext.P6. Petitioner was ranked as 16 in the list. Public Service Commission, however, issued Ext.P6 (b) show cause memo to the petitioner to show cause why his name should not be deleted from the rank list. Relevant portion of the show cause memo reads as follows:

As per recruitment rules for the post of Assistant Engineer (Departmental Quota) candidates should be in continuous service at the time of applying for the post as well as when called for interview by the Commission. But as per the letter 3rd cited received from the Chief Engineer, Irrigation you were on Leave Without Allowance for taking up employment aboard w.e.f. 13-09/2005 i.e. You were not in continuous service at the time of interview. (The interview for the post was held on 6th & 7th December 2005).

In the above circumstance, the Commission have tentatively decided to delete your name from the Ranked List for the post of Assistant Engineer (Civil) Departmental Quota in Irrigation department published on 31.12.05.

You are therefore directed to offer explanation, if any, against the proposed action within 10 days from the date of receipt of this letter, failing which your name will be deleted from the Ranked List on the presumption that you have nothing to explain in the matter.

Petitioner submitted Ext.P7 reply to the said show cause notice stating that there was no stipulation that he should be in continuous service when he was called for interview and the fact that he was granted leave without allowance for taking up employment abroad for five years would not make him ineligible to apply for the post, since he is still a member of that service. Further it was pointed out that his probation in the post of I Grade Draftsman was declared on 6-11-1998 and had possessed all the requisite qualifications for the post of Assistant Engineer stipulated in the Special Rules. Therefore it was pointed out that there is no reason to remove his name from the rank list. Overruling his objection Public Service Commissioner issued Ext.P7(a) order removing him from the rank list, against which petitioner has approached this court. Learned single Judge found no illegality in the order passed by the Public Service Commission removing his name from the rank list. Learned single Judge took the view that the qualifications of an applicant has to be decided with reference to the last date for receipt of applications. In other words, if a person is not qualified on the said date and he acquires subsequently one of the essential qualifications, he cannot be considered for selection. So, a candidate who is qualified on the last date for receipt of applications would normally remain qualified all along the selection process. Learned single Judge endorsed the view of the Public Service Commission that the petitioner should continue in service even at the time of interview, which according to the learned single Judge is a plausible view.

3. Sri. B. Gopakumar, learned counsel appearing for the appellant submitted that the reasons stated by the Public Service Commission for deleting his name from the rank list cannot be sustained in law. Learned counsel submitted reasons for deleting his name was that he was not in continuous service at the time of applying for the post as well as when he was called for interview by the Public Service Commission. Learned counsel submitted, while applying for the post he was working as I grade Draftsman, but when he was called for interview he was on leave without allowance. Counsel submitted the mere fact that he had availed of leave without allowance, subject to the conditions stipulated in Appendix XII-A of KSR, the Government or the Public Service Commission cannot take away his statutory right in applying for the post of Assistant Engineer as per the Kerala Engineering Service (Civil and General Branch) Rules. Learned counsel submitted that he has satisfied the conditions stipulated in the Special Rules for applying for appointment by transfer to the post Assistant Engineer. The Special Rules only says that a candidate must have rendered service under the Government for a minimum period of five years. Learned counsel submitted that he has satisfied that condition and therefore he is fully qualified for applying for the post of Assistant Engineer as per Special Rules. Learned counsel also submitted that clause 4 of Appendix XII-A of the KSR would not apply in the case of petitioner since he is not seeking promotion to the post of Assistant Engineer. Method of recruitment to the post of Assistant Engineer is by recruitment by transfer. Learned counsels submitted that even if he will lose all service benefits such as the earning of leave including half pay leave, pension, gratuity, increment etc, and also promotion chance, seniority in the higher grade, still he is eligible to apply for appointment by transfer to the post of Assistant Engineer since he has satisfied all the qualifications prescribed under the Special Rules and that clause (4) of Appendix XII-A is not taken away that statutory right conferred on the petitioner.

4. Appointment by transfer to the post of Assistant Engineers in the civil and general branch is governed by the Kerala Engineering Service (Civil and General Branch) Rules. Category 5 in rule 2 deals with Assistant Engineer. Rule 3 (b) says that promotions and appointments by transfer shall be made from select lists of eligible officers prepared on the basis of merit and ability, seniority being considered only where merit and ability are approximately equal. Persons included in a select list shall be ranked in the order of their seniority. Rule 4 deals with qualifications, which say that no person shall be eligible for appointment to the category mentioned in column (1) of the table below unless he possesses the qualifications prescribed in the corresponding entry in column (2) thereof. We are concerned with the post of Assistant Engineer. The qualification prescribed is as follows:

Assistant Engineers (including Head Draftsman):

Appointment by direct recruitment:

Must posses any of the Degrees in Civil Engineering specified in item (i) or Diploma in Civil Engineering specified in section A of item (ii) in the Annexure.

Appointment by transfer:

(i) Must have passed the S.S.L.C. Examination or its equivalent qualification.

(ii) (a) Must possess any of the Diplomas in Civil Engineering mentioned in Section B of item (ii) in the Annexure and must have rendered service under Government for a minimum period of two years; or

(b) Must possess any of the Qualifications mentioned in item (iii) in the Annexure and must have rendered service under the Government for a minimum period of five years of which not less than two years shall be in the category of First Grader Overseer/Draftsman.

Indisputably, petitioner has satisfied the qualifications stipulated in the Special Rules. Petitioner has passes S.S.L.C. Examination and also possesses a Degree in Civil Engineering (B. Tech.) and has also rendered service in the Government for more than 5 years. Only question is whether he will lose his right for applying for the post of Assistant Engineer by appointment by transfer on the mere fact that he has availed of leave without allowance subject to the conditions stipulated in Appendix XII-A of KSR. Scope of Appendix XII-A of K.S.R. came up for consideration before this court in several decisions. Reference may be made to the decisions of this Court in Unnikrishna Paniker v. Bhasi, (2001 (1) KLT 449); Abdul Razak K.K. v. State of Kerala, (2006 (1) KLT 818 [LQ/KerHC/2006/110] ); Krishna Warrier v. Devendran, (2005 (4) KLT SN 66 Page 51); Sreekala v. State of Kerala (2007 (1) KLT 903) and therefore it is unnecessary to examine the scope of above mentioned provision, but we have to examine the question whether the petitioner would lose his statutory right for applying to the post of Assistant Engineer on the basis of the notification issued by the Public Service Commission for appointment by transfer merely because he has availed of leave without allowance, for taking up employment, abroad. Special Rules say, for applying for the post of Assistant Engineer by way of appointment by transfer, a candidate should possess S.S.L.C. examination and also possess a B.Tech in Civil and rendered minimum five years of service. Indisputably, petitioner has satisfied all the qualifications as per Special Rules, but the only reason for disqualifying is that he was not in continuous service at the time of interview. Only question is whether, due to the mere fact that he availed of leave without allowance as per Clause (4) of Appendix XII-A would disentitle him to apply for appointment by transfer to the post of Assistant Engineer. Clause (4) of Appendix XII-A is extracted for easy reference:

4. Permanent Officers and non-permanent Officers who have completed probation in their entry cadre in the regular service of Government may be granted leave without allowances under these rules. In such cases, for, and during the currency of, the period of leave, the officers shall lose all service benefits such as earning of leave including half pay leave, pension, gratuity, increment, etc., and also promotion chances as may arise without reference to their seniority in the posts from which they proceeded on leave. The shall also lose seniority in the higher grade/graders with reference to their juniors who might get promoted to such grade/grades before they rejoin duty.

A permanent officer who has completed probation in his entry cadre in the regular service of the Government shall lose all service benefits such as the earning of leave including held pay leave, pension, gratuity, increment etc. if he availed of leave without allowance and also his promotion chances which may arise with reference to seniority in the post from which he proceeded on leave and he shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before he rejoins duty. True, petitioner has lost all the above mentioned benefits since he has availed of leave without allowance. But for appointment by way of transfer to the post of Assistant Engineer, the criterion is entirely different. The only criterion stated in the Special Rules is that such a candidate should have rendered service in the Government for minimum period of five years apart from other qualifications, which he has satisfied, before taking leave. Special Rules do not provide that at the time of submitting applicant he should be in service, that too continuous and the mere fact that he has availed of leave without allowance does not mean that he ceases to be a member of that service and in that process his services rendered prior to taken leave would be erased. Petitioner is still a member of that service. Member of service is defined under Rule 2 (9) of Part-I K.S. & S.S.R which reads as follows:

Member of service means a person who has been appointed to that service and who has not retired or resigned, been removed or dismissed, been substantively transferred or reduced to another service, or been discharged otherwise than for want of a vacancy. He may be a probationer, an approved probationer or a full member of that service.

Petitioner is a member of Water Resources Department. Even though he has taken leave without allowance he does not cease to be a member of that service and the services already rendered will not be erased. Clause (4) of Appendix XII-A only takes in promotion chances of persons who have availed of leave, but does not take away the right of a person for appointment by transfer and the past services rendered. Word Promotion has been defined under Rule 2 (11) of Part-I KS. & S.S.R. which reads as follows:

Promotion means the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class.

Recruitment by transfer has been defined under clause (13) of Rule 2 of Part-I K.S. & S.S.R. which reads as follows:

(13) A candidate is said to be recruited by transfer to a service-(i) if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service; and (ii) if at the time of his first appointment thereto - (a) he is either a full member or an approved probationer in any other service, the rules for which prescribed a period of probation for members thereof;

Provided that where the Special Rules for a service provide for recruitment by transfer to any class or category thereof from any specified class or category of another service, a candidate shall, unless the recruitment is made from a post carrying an identical scale of pay, be a full member or an approved probationer in the class or category so specified; or (b) he is holder of a post in all in any other service for which no probation has been prescribed, and has put in satisfactory service in that post for a period of two years on duty within a continuous period of three years.

Promotion and recruitment by transfer are different concepts. Clause (4) takes only promotion and not recruitment by transfer and therefore even if the petitioner has lost all the benefits as provided under clause (4) of Appendix XII-A it cannot be said that he has lost his right for applying recruitment by transfer the length of service already put in by him, before availing of leave without allowance.

5. Under such circumstance we are inclined to allow this appeal and set aside the judgment of the learned single Judge and quash Ext.P7 (a) order passed by the Public Service Commission removing the name of the petitioner from the rank list. Petitioner is entitled to get appointment by transfer on the basis of the rank list published by the Public Service Commission.