KURIAKOSE v. STATE OF KERALA — 1984 DIGILAW 16 (KER)

Judgment :- 1. Kerala Agro Industries Corporation 2nd respondent in the writ petition invited on 6-5-1981 applications for the appointment for the post of Production Assistants. The qualifications and experience for the post were: B. Sc. (Food Technology) or B. Sc. Degree with Certificate in Fruit and Vegetable processing; 2 years' experience in Fruit and Vegetable processing preferably in a cannery processing pineapple products. The applications were to reach the Corporation within 15 days of the publication of the notification. There were many applicants. The petitioner was one among them. So too was the 4th respondent. Interview was fixed on 17-9-1981. The candidates were to produce at the time of the interview original records with proof of age, qualification, experience etc Fifteen candidates were so interviewed. The rank list prepared was to enure for a period of two years, that is up to 17-9-1983. Ranks Nos.1 and 2 went to one Baby Sarojam and Krishnakumar. The 4th respondent got the 3rd rank and the petitioner, the 4th. 2. Krishnakumar got appointment initially as Chemist. Later under Ext. R4-A dated 19-12-1981 he was permitted to go over to the post of Production Assistant. It was thereafter that under Ext. R4-B dated 2-7-1982 that the 4th respondent was appointed as Production Assistant. The penultimate paragraph of the appointment order stated: "Please bring with you the documents in original to prove date of birth, qualifications, experience, community etc., for verification at the time of your joining duty". Pursuant to the appointment order, he joined duty. 3. According to the petitioner, the 4th respondent was not entitled to be appointed to the post. One reason for saying so was the allegation of the petitioner that the 4th respondent was not possessed of the prescribed experience. And the second one was his omission to produce certificate of experience at the time of the interview. It is claimed that the petitioner "made personal representations on this matter to the 2nd respondent and to the then Minister for Agriculture." The allegation continues: "Both of them promised to look into the matter and do the needful immediately. But nothing has been done till now." 4. The petitioner felt that it was getting unduly delayed. The validity period of the list was to expire on 17-9-1983. Further wait was felt to be fatal. The writ petition was thereupon filed before this court on 7-9-1983. But nothing has been done till now." 4. The petitioner felt that it was getting unduly delayed. The validity period of the list was to expire on 17-9-1983. Further wait was felt to be fatal. The writ petition was thereupon filed before this court on 7-9-1983. The pointed contentions are covered by Ground B. They are linked with an allegation about the infraction of Art.14 and 16 of the Constitution. It was contended that the 4th respondent could not be retained in the services of the Agro Industries Corporation and that the petitioner should be appointed as Production Assistant. 5. Counter-affidavits have been filed on behalf of the Corporation and also on behalf of the appointee-the 4th respondent. 6. In the light of the documents produced and averments contained in the counter-affidavits, it cannot be doubted that the 4th respondent is duly qualified. The possession of educational qualification by the 4th respondent is evident from Ext. R4-C. Exts. R4-D and R4-E establish the possession of the requisite experience also. The 2nd respondent-Corporation was convinced about it. In Para.7 of the counter-affidavit it was stated that as on the date of the application, namely, 13 51981, the 4th respondent had acquired the necessary experience, and to be precise, a two years 3 months and 22 days experience, in Fruit and Vegetable Processing. This was taken into consideration by the committee; and since be had fared better than the petitioner, he was ranked above the petitioner. 7. The serious and fundamental challenge on the lack of qualification, therefore, fails. As a matter of fact, confronted with these materials, counsel for the petitioner did not pursue the point about the 4th respondent lacking either in qualification or in experience. 8. A tenacious argument was, however, advanced about the omission of the 4th respondent to produce the originals of the records at the time of the interview. That requirement under Ext. P2 letter had not been complied with. That is fatal, according to the petitioner, to the selection of the 4th respondent. On that ground, the selection and the subsequent appointment of the 4th respondent have to be set at naught by this court, according to him. That requirement under Ext. P2 letter had not been complied with. That is fatal, according to the petitioner, to the selection of the 4th respondent. On that ground, the selection and the subsequent appointment of the 4th respondent have to be set at naught by this court, according to him. Reliance was placed on the decisions of this court in Kerala Public Service Commission v. Varghese, ILR.1977(1) Kerala 523, Kerala Public Service Commission v. Saroja Nambiar, ILR.1978(2) Kerala 241, Rangaswami v. Kerala Public Service Commission, ILR.1982(2) Kerala 59, Kerala Public Service Commission v. Prasad Chandran, 1978 KLN. 305 and the recent judgment in OP. No. 5439 of 1981 (Paripoornan, J.). 9. One fundamental distinction exists between the decisions and the present one. In all those cases, this court declined to interfere with the decision of the Public Service Commission by which an applicant, who failed to comply with the requirements of the notification inviting application, or other communication, defaulted in complying with the terms thereof. In other words, it is essentially for the authority which makes the selection to consider whether there has been such a violation of an important condition as to drive it to the necessity of rejecting the application or refusing the selection of a candidate. In the present case, however, that authority has weighed the condition. And the condition is one contained in a communication like Ext. P2 addressed to one of the candidates on an occasion preceding the interview. A stipulation regarding the production of the original documents at the time of interview need not be such a fundamentally important condition as not to admit of any relaxation whatever. At any rate it is essentially for the selecting authority to decide whether there should be any relaxation in respect of such a stipulation. Normally, when the authority bona fide comes to a conclusion that some relaxation could be given in that regard, this court will be extremely reluctant to interfere with such a policy decision. 10. And that is all that has happened in the present case. Though the original records were not produced at the time of the interview, the actual appointment was effected only on the production of those records. Under Ext. R4-B, the 4th respondent was directed to produce the original document for verification at the time of his joining duty. 10. And that is all that has happened in the present case. Though the original records were not produced at the time of the interview, the actual appointment was effected only on the production of those records. Under Ext. R4-B, the 4th respondent was directed to produce the original document for verification at the time of his joining duty. That was duly complied with The files produced on behalf of the 2nd respondent contain materials which would justify such an attitude and approach taken by the 2nd respondent. It cannot be said on the basis of the facts disclosed in the pleadings and discernible from the files, that any impropriety or irregularity had been committed in the selection and appointment of the 4th respondent. As noted earlier, he was fully qualified, both educationally and experience-wise. Before joining, the originals of the testimonials had been furnished to the 2nd respondent. The non-production of the originals at the time of interview, in the circumstances, is not a matter of substance. It is an omission of a venial nature. It is of such a nature which could be waived or relaxed by the appropriate authority, without in any way causing detriment to public interest or going counter to a public policy in a substantial or fundamental manner. In that view, the attack of the petitioner should fail. 11. The question has to be viewed in the larger perspective of a citizen's fundamental right to be considered for appointment under the State. (That will include an authority like the 2nd respondent). Naturally, the process of selection could contain very many procedural details and conditions. The stipulations and conditions are ordinarily to be complied with. That does not, however, mean that the slightest infringement of one of those very irrelevant stipulations would also entail dismissal of the application or refusal of a selection. Everything would depend upon the nature of the condition. That is why the Supreme Court did attach much importance to the reasonable character of the condition. (See Uma Shankar v. Union of India, AIR. 1980 SC. 1457 where it was observed: "The terms and conditions of service are intended to be construed reasonably, and too technical a view can defeat the essential spirit and intent embodied in them). That is why the Supreme Court did attach much importance to the reasonable character of the condition. (See Uma Shankar v. Union of India, AIR. 1980 SC. 1457 where it was observed: "The terms and conditions of service are intended to be construed reasonably, and too technical a view can defeat the essential spirit and intent embodied in them). Emphasis on the reasonableness of the conditions was given in Kerala Public Service Commission v. Saroja Nambiar, ILR.1978(2) Kerala 241 (Eradi J. speaking for the Bench noted: "It is not contended that the conditions stipulated in the notification were in any way unreasonable".) (emphasis supplied) It may be that in some cases, an authority may, in the notification inviting application, provide for conditions of a substantial and grave nature with direct and intimate nexus to the process of selection. A default therein may be viewed seriously. Or it may be. that the condition is one which need not necessarily be viewed seriously. If the digression is in respect of a non-consequential or unimportant stipulation, deprivation of a job opportunity to a person who is otherwise fully qualified and even possessing superior merit for being appointed to the post, will amount to an arbitrary or unreasonable action, inconsistent with Art.14 and 16 of the Constitution. If the selecting authority like the 2nd respondent did not feel it necessary to give such crucial significance to the stipulation contained in Ext. P2 in regard to the production of the original records at the time of the interview, the view is entitled to be upheld, as being eminently reasonable and just. 12. That a rigid adherence to all the conditions in the notification cannot be insisted upon in all cases, has been laid down by this court from very early times Eradi J. took that view in one of the first cases where the Public Service Commission had insisted on a rigorous compliance with a condition. The learned judge discountenanced a plea of the Public Service Commission based on "the hyper technicality of the breach committed of the condition specified in one of the clauses in the notification inviting applications." (See Abdul Rasheed Kunju v. The Kerala Public Service Commission, Judgment dated 16-6-1970 in OP. 1093 of 1970). The judgment was upheld by a Division Bench in WA. 154 of 1970 This decision in OP. 1093 of 1970). The judgment was upheld by a Division Bench in WA. 154 of 1970 This decision in OP. 1093 of 1970 is not fully reported in the law journals and had not therefore received due attention is some of the later cases. Apparently, the dimension of the work to be done by the Public Service Commission has been indicated as a reason in some of the decisions as a justification for the Public Service Commission to have such an inflexible stand. The working difficulties of the Public Service Commission, according to me, cannot defeat valuable rights of the citizens. Difficulties arising out of the increase in work load and the like, have to be solved otherwise than by stultifying the rights of those knocking at its doors and waiting there for long, for an employment opportunity. I am comforted by the realisation that such an approach had been taken by Khalid J. (initially), Narendren J., and Chandrasekhara Menon J. A liberal approach in favour of the candidate was indicated by M. P. Menon J. in Santhamma v. Public Service Commission, 1982 KLT "86. This liberal approach had not received due attention in some of the later decisions of this Court. 13. If the correctness of the decisions referred to in para 8 above had arisen for a direct decision in the present case, I would have considered the question of referring the matter to a Bench to enable a reconsideration of those decisions. 14. It is, however, not necessary for the purpose of this case to analyse in detail the aforesaid decisions in view of the fundamentally different context in which these decisions on the one hand and the present case on the other stand. As noted earlier, those decisions were considering the question whether the Public Service Commission's action in insisting on a compliance with the conditions should be interfered with. In the present case, the question is whether a waiver by the competent authority of a stipulation in a letter relating to the interview of a candidate should be interfered with by the court. The reluctance of the court to interfere with the reasonable stand of a responsible authority would only be an added ground in the present case for declining the jurisdiction under Art.226 of the Constitution. 15. The writ petition has to suffer a dismissal on another ground also. The reluctance of the court to interfere with the reasonable stand of a responsible authority would only be an added ground in the present case for declining the jurisdiction under Art.226 of the Constitution. 15. The writ petition has to suffer a dismissal on another ground also. The petitioner did not approach this court within a reasonable time. The 4th respondent has joined duty, after leaving an employment which he had in Orissa. The petitioner did not approach this court even within one year of the issue of Ext. P2. He has no valid excuse for such an omission and for such a long delay. Though he states that he submitted representations to the 2nd respondent and the Minister, there is nothing on record to support such a statement. Not having invoked the jurisdiction of this court within a reasonable time and not having furnished materials evidencing a vigilant and diligent conduct on his part in pursuing his claim, his challenge will have to fail on the ground of delay and laches. 16. The files made available by the 2nd respondent reveal that there had been complaints before the 2nd respondent by one of the Trade Unions of that organisation about the impugned appointment. It is seen that a detailed enquiry had been conducted into the matter. The enquiry resulted in upholding the validity and propriety of the selection and appointment of the 4th respondent. The 2nd respondent was thus fully satisfied about the selection process adopted in the case. The materials collected at the enquiry and the reasoning in support of the decision, would also lend assurance to the court that no injustice had, as a matter of fact, arisen as a result of the appointment of the 4th respondent as Production Assistant in the services of the 2nd respondent. 17. In the light of the above discussion the original petition is dismissed, but without any order as to costs. Dismissed.