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1987 DIGILAW 473 (KER)

RAVUNNIKUTTY v. ROSALIND

1987-09-28

BHASKARAN NAMBIAR, MALIMATH

body1987
Judgment :- 1. This appeal is against the judgment of the learned single judge in O.P. No. 2442 of 1983. The relevant facts necessary for the disposal of this appeal may briefly be stated as follows: The appellant commenced his career as a Copyist with effect from 25-9-1970 in the Magistrate's Court at Pattambi in Palghat District. He was promoted as Lower Division Clerk on 8-10-1974 and confirmed in that capacity on 8-11-1976. For further promotion to the cadre of Upper Division Clerk, it was necessary for the appellant to pass the Account Test (Lower) prescribed under the rules consisting of four papers. The appellant passed in papers 2,3 and 4 on 1-4-1977. In regard to the remaining paper viz., the 1st paper which he took on 29-7-1982, the result was announced on the notice board of the Public Service Commission on the 1st November, 1982 and the same was also published in the Kerala Gazette dated 23-11-1982. The appellant having been declared passed thus earned eligibility for promotion to the cadre of Upper Division Clerk. 2. So far as the first respondent is concerned, she joined the service much later, that is on 3-4-1971 as Copyist. She was in due course promoted as Lower Division Clerk on 23-2-1975. She was however successful in passing in all the four papers of the Account Test examination on 6-1-1976. Thus though in the cadre of Lower Division Clerks the appellant is admittedly senior to the first respondent, the first respondent acquired eligibility for promotion by passing the Account Test (Lower) earlier than the appellant. 3. On the basis that a vacancy of Upper Division Clerk arose on 21-11-1982 the first respondent was promoted in that cadre by Ext.P2 dated 22-11-1982. Subsequently on further review of the position and having regard to creation of certain posts, the deemed date of promotion was revised by Ext.P3 and the first respondent was accorded a deemed date of promotion with effect from 15-11-1982. This was obviously done on the assumption that as on the date on which the vacancy arose the first respondent was duly qualified, whereas the appellant was not duly qualified. 4. This was obviously done on the assumption that as on the date on which the vacancy arose the first respondent was duly qualified, whereas the appellant was not duly qualified. 4. The appellant then made a representation as per Exts.P4 and P5 requesting that his case for promotion be considered as on the date on which the first respondent has been promoted on the ground that he is senior to the first respondent and was also duly qualified on the relevant date. Those representations came to be allowed by Ext.P6 dated 5-1-1983. The appeal by the first respondent against the said order to the High Court came to be allowed by order Ext.P8 dated 25-2-1983 holding that the order promoting respondent No.1 with effect from 15-11-1982 in preference to the appellant was legal and proper. It is on the basis of the said decision that the appellant came to be reverted as per Ext.P9. It is in this background that the appellant approached this court in OP No. 2442/83. The learned single judge has taken the view that the decision of the High Court on its administrative side evidenced by Ext.P8 is right and does not call for interference. Hence this appeal. 5. The principal contention of the learned counsel for the appellant is that it was wrong to deny promotion to the appellant with effect from 15-11-1982, the date of occurrence of vacancy, as he was senior to the first respondent and was duly qualified on that date. It was submitted that the assumption made that the appellant was not duly qualified is not warranted. Though the appellant passed in all the four papers prescribed for Account Test, the view taken is that the result of the last paper having been published in the Kerala gazette on 23-11-1982, it is that date that has to be a taken into consideration as the date on which the appellant acquired the obligatory qualification for earning eligibility for promotion to the cadre of Upper Division Clerks. The contention of the learned counsel for the appellant is that the result of the test having been published on the notice board of the Public Service Commission on 1-11-1982, the appellant must be deemed to have acquired the necessary qualification on that date. The contention of the learned counsel for the appellant is that the result of the test having been published on the notice board of the Public Service Commission on 1-11-1982, the appellant must be deemed to have acquired the necessary qualification on that date. The crucial question for consideration in this case is as to what is the date on which the appellant can be regarded as having acquired the Account Test qualification; whether he acquired the qualification on 1-11-1982, the date on which the result was published by the Public Service Commission on the notice board or on 23-11-1982, the date on which the result was published by the Public Service Commission in the Kerala gazette. 6. The relevant rule that we should notice in this behalf is R.16 of the Kerala Public Service Commission Rules of Procedure which reads as follows: "16. When any examination is to be held to test the proficiency of classes of Government servants in the subjects prescribed for Departmental Examinations, the Commission shall: (i) advise Government in regard to prescribing (a) the conditions of admission to the examination; (b) the syllabus of the examination; and (c) the minimum marks for a pass in the examination; (ii) make all arrangements for the conduct of the examination; (iii) publish the results in the gazette and in any other manner the Commission may deem fit." The contention on behalf of the first respondent however is that the requirement of R.16(iii) that the result of the Departmental examination should be published in the gazette makes it clear that it is the date on which the results are published in the gazette that the candidates can be regarded as having acquired the qualification. It is no doubt true that R.16(iii) requires the Public Service Commission which is authorised to hold the departmental examination in regard to Account Test (Lower) to publish the result in the gazette and in any other manner the Commission may deems fit. So far as the manner of publication other than publication in the gazette is concerned, discretion is left with the Public Service Commission. But it is obligatory on the part of the Public Service Commission to publish the result not only in the gazette but in some other manner as it considers proper. So far as the manner of publication other than publication in the gazette is concerned, discretion is left with the Public Service Commission. But it is obligatory on the part of the Public Service Commission to publish the result not only in the gazette but in some other manner as it considers proper. It is precisely realising this obligation imposed by R.16(iii) that the Public Service Commission has chosen in this case to publish the result of the examination on the notice board of the Public Service Commission on the 1st of November, 1982. As already stated, the same result was also published in the Kerala gazette on 23-11-1982. Thus in this case there are two dates on which publication of results of the Account Teat (Lower) was made by the Public Service Commission, one on the notice board of the Public Service Commission on 1-11-1982 and the other in the gazette on 23-11-1982. The first respondent would contend that the publication of the result in the gazette being mandatory and as it is by publication in the gazette that everyone concerned comes to know of the results, it is reasonable to construe that the qualification can be regarded as having been acquired only on the date of publication in the gazette. It is necessary to point out that though R.16(iii) in terms requires the Public Service Commission to publish the result in the gazette and in any other manner as it deems fit, it does not in express terms say as to the date on which the qualification can be regarded as having been acquired. The rule does not say that the candidate must be deemed to have acquired the qualification either as on the date on which the result is published in the gazette or as on the date on which the result is published in any manner as the Public Service Commission deems fit. The rules only require mandatory publication in any other form as the Commission deems fit. As the rules are silent as to the date on which the candidate must be deemed to have acquired the qualification, it has become necessary for us to examine the question as to the date on which the candidate must be deemed to have acquired the qualification. 7. As the rules are silent as to the date on which the candidate must be deemed to have acquired the qualification, it has become necessary for us to examine the question as to the date on which the candidate must be deemed to have acquired the qualification. 7. It is necessary to bear in mind that the candidate having taken the examination it is he who is primarily concerned about knowing the result of the examination. It is to enable the candidates and all persons concerned to know about the result that the rule prescribes that the result shall be published in the gazette and in any other manner as the Commission deems fit. So far as the candidate is concerned, after he has written the papers there is nothing more that he is required to do in the matter. The responsibility thereafter would be that of the Public Service Commission to get the papers evaluated and thereafter announce the results. The Public Service Commission having taken a decision to publish the result by notifying the same on the notice board of the Public Service Commission, it is necessary to understand the clear effect of the publication on the notice board of the Public Service Commission. It is obvious that the publication of the result on the notice board is not an idle formality. It has been chosen it as one of the modes of publication of the result of the examination. The Public Service Commission when it notified the result on the notice board, it has officially announced the result of the examination. After the announcement of the result by notification on the notice board of the Public Service Commission, it will not be open to the Public Service Commission to say that the result of the examination is not known or that the one published on the notice board is not the result of the examination. In other words, once it published the result on the notice board it officially announced the result of the examination to everyone concerned. In a situation like this, the Supreme Court has observed in AIR 1980 SC 1230 between Charles K. Skaria and others v. Sr. C. Mathew and Others as follows: "So, the short question is when can a candidate claim to have got a diploma? In a situation like this, the Supreme Court has observed in AIR 1980 SC 1230 between Charles K. Skaria and others v. Sr. C. Mathew and Others as follows: "So, the short question is when can a candidate claim to have got a diploma? When he has done all that he has to do and the result of it is officially made known by the concerned authority. An examinee for a degree or diploma must complete his examination written, oral or practical before he can tell the selection committee or the court that he has done his part. Even this is not enough. If all goes well after that, he cannot be credited with the title to the degree if the results are announced only after the last date for applications but before selection. The second condition precedent must also be fulfilled, viz., the official communication of the result before the selection and its being brought to the ken of the committee in an authentic manner. May be, the examination is cancelled or the marks of the candidates are withheld. He acquires the degree or diploma only when the results are officially made known. Until then his qualification is inchoate. But once these events happen his qualification can be taken into account in evaluation of equal opportunity provided the selection committee has the result before it at the time of not after the selection is over " The principle laid down by the Supreme Court is clearly to the effect that once the result is officially made known by the authority who has the right to hold the examination and announce it is the date on which the results are so made known that must be regarded as the date on which the candidates have acquired the qualification. Applying the said principle to the facts of the present case, it becomes clear that when the Public Service Commission announced the results of the Account Test on 1-11-1982 by publishing the same on the notice board of the Public Service Commission, the Public Service Commission officially made known the result and therefore it is the date on which the publication was made on the notice board that must be regarded as the date on which the candidates whose names are included in the notification acquired the necessary qualifications When the result is published in accordance with R.16(iii) on different dates by the Public Service Commission, interest of justice requires that the date on which the first publication was made by the Public Service Commission must be regarded as the date of acquisition of the qualification. We have therefore no hesitation in taking the view that the appellant must be regarded as having acquired the qualification of Account Test (Lower) with effect from 1-11-1982, the date on which the result was published on the notice board of the Public Service Commission. Consequently it follows that the appellant was entitled to be promoted with effect from 15-11-1982, the date on which the vacancy of Upper Division Clerks arose. As on that date he was senior to the first respondent and also duly qualified, he having acquired Account Test (Lower) qualification. The administrative decision taken by the High Court as per Ext. P8 cannot therefore be sustained. For the reasons stated above this appeal is allowed, the judgment of the learned single judge is set aside and the order of the High Court on the administrative side Ext. P8 and the consequential order of reversion Ext. P9 are hereby quashed and the order Ext. P6 stands resorted, subject to the modification that the appellant shall be deemed to have been promoted not from 22-11-1982 but from 15-11-1982. The appellant shall be entitled to all consequential benefits flowing from this declaration. No costs.