P.R. RAMACHANDRA MENON, J.

1. Whether invocation of power of the Government under Rule 39 of Part II of the Kerala State and Subordinate Services Rules is to be done as a matter of course, without considering whether it is for a just and equitable reason as mandated in the very same Rule itself, forms the subject matter of consideration in this Original Petition. This gathers more momentum in the light of the fact that the person concerned to whom such benefit is given by the Government (the 4th respondent) by invoking such Rule has already suffered three different judgments (before the Single Bench and Division Bench of this Court and also before the Supreme Court) who lost the battle through out; but still came to be accommodated by the Government, after dispensing with the basic requirement of sending for training for 2½ years.

2. The beneficiary (4th respondent) was not even called for any interview by the PSC, because of non-satisfaction of the required qualification as notified by the PSC for selection in respect of the physical measurements. Interference declined by the Kerala Administrative Tribunal with regard to the challenge raised against the appointment given to the 4th respondent in the above regard and declining the relief for the petitioner (the applicant) to have him appointed in the place of the 4th respondent made him feel aggrieved and hence the Original Petition.

3. Heard Sri. Prasanth S., the learned counsel appearing for the petitioner, Sri. P.C. Sasidharan, the learned Standing Counsel for the PSC, Sri. M. Mohammed Shafi, the learned Government Pleader appearing for the State and Mr. P. Deepak, the learned counsel who entered appearance on behalf of the 4th respondent (stated as instructed by Sri. Babu Paul, the learned lawyer who has filed vakalath for the 4th respondent).

4. Challenge is against Ext.P3 order passed by the Tribunal in O.A. No. 393/2015, which was filed with the following prayers:-

(i) to declare that the 4th respondent is not entitled for appointment as Range Forest Officer under the FTR quota in violation of the Special Rules and by passing the Public Service Commission and there is no circumstance existing for invoking Rule 39 of the KS & SSR by the Government in favour of the 4th respondent disregarding Annexure.A4 to A7 Orders/Judgments of the Hon'ble High Court and Hon'ble Supreme Court;

(ii) to call for the records leading to Annexure.A16, A20, A21 and A25 and to set aside the same.

(iii) to issue appropriate direction or order, directing the respondents 1 to 3 to appoint the applicant as Range Forest Officer replacing the 4th respondent under the FTR quota with effect the date of appointment of the 4th respondent as Range Forest Officer.

5. The sequence of events reveals that both the petitioner as well as the 4th respondent were working as the Deputy Forest Rangers in the Forest Department. They were aspirants to the post of Forest Range Officer which is situated in the next higher level, in the hierarchy. The PSC invited applications from eligible hands and a notification was issued in the year 2005. Qualifications, both academic as well as the physical requirements, were clearly mentioned in the said notification. Both the petitioner and the 4th respondent had applied for the post and after completion of the process of selection, the PSC published Annexure.A1 select list wherein the name of the petitioner was placed at Serial No. 22. The 4th respondent was never given a placement in the select list for the fact that, when the physical measurement was taken, his chest measurement was only 82 cms.' whereas the notification clearly insisted that the chest measurement should be 84 cms.' with further expansion of 5 cms. As a result of this, the 4th respondent was not called for the interview and in turn did not get placement in Annexure.A1 select list.

6. As a matter of fact, for giving promotion to the post of Forest Range Officer, it was very much essential to have sent the eli