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2016 DIGILAW 575 (KER)

Prasanth K Kanotathil v. Kerala Public Service Commission

2016-07-01

A.K.JAYASANKARAN NAMBIAR

body2016
JUDGMENT A.K. Jayasankaran Nambiar, J. 1. As the issue involved in both these writ petitions is the same, they are taken up together for consideration and disposed by this common judgment. 2. The petitioner in W.P.(C) No. 17596/2016 had applied for the post of Draftsman Grade I in the Kerala Water Authority, pursuant to a notification inviting applications that was published by the Kerala Public Service Commission (hereinafter referred to as the 'PSC'). Pursuant to the application submitted by the petitioner, the petitioner is issued with an admission ticket directing him to appear for the written examination on 25-9-2015. Thereafter, the PSC published a short list dated 30-4-2016, wherein, the petitioner's name was included in the supplementary list of Ezhava candidates. The petitioner was thereafter called for a certificate verification on 10-12-2015. It is not in dispute that the petitioner appeared before the authorities for the certificate verification and produced all the relevant documents to prove his qualification. When the final rank list for the post of Draftsman Grade I in the Kerala Water Authority was published on 4-4-2016, the name of the petitioner was excluded from the supplementary list of Ezhava candidates. The petitioner therefore preferred a representation before the PSC requesting for an inclusion of his name in the final rank list. The petitioner was then served with Ext. P-7 communication, wherein, he was informed that his application was rejected for the reason that he had omitted to put his signature under the declaration in the identification certificate. In the writ petition, the petitioner impugns Ext. P-7 communication dated 15-4-2016, inter alia on the contention that the defect pointed out by the PSC was only a minor one that was curable and did not necessitate a cancellation of the petitioner's candidature in the selection process. 3. In W.P.(C) No. 20773/2016, the petitioner is a candidate who had applied for the post of Mazdoor (Electricity Worker) in the Kerala State Electricity Board in Malappuram District. Pursuant to the examination, the petitioner was also included in Ext. P-2 rank list. Immediately thereafter, however, the petitioner was served with a show cause notice, wherein, it was indicated that the PSC had taken a decision to remove his name from the rank list. Although the petitioner replied to the show cause notice, the 2nd respondent issued Ext. P-5 communication indicating that the name of the petitioner had been removed from Ext. Immediately thereafter, however, the petitioner was served with a show cause notice, wherein, it was indicated that the PSC had taken a decision to remove his name from the rank list. Although the petitioner replied to the show cause notice, the 2nd respondent issued Ext. P-5 communication indicating that the name of the petitioner had been removed from Ext. P-2 rank list, since, in the identification submitted by the petitioner before the PSC, the photograph affixed on the certificate did not contain the name of the petitioner and the date of taking of the photograph. In the writ petition, the petitioner impugns Ext. P-5 communication inter alia on the ground that the mistake pointed out by the PSC was only a minor one taking into account the fact that the petitioner did not have a pass in Std.X and did not have adequate knowledge in computers. It is stated that the defect in question was only a minor defect that was condonable, and the respondent PSC ought to have condoned the same. 4. Counter-affidavits have been filed by the respondent PSC in both the writ petitions, wherein, the stand taken by the respondent PSC is that the defects in question were not minor defects, and hence, the non-compliance with the mandatory conditions that were stipulated in the notifications issued by the PSC had to result in a rejection of the candidature of the petitioners for the posts in question. 5. I have heard Sri Kaleeswaram Raj, the learned counsel for the petitioners in both the writ petitions and also Sri PC. Sasidharan, the learned Standing counsel for the Kerala Public Service Commission in both the writ petitions. Counsel on either side referred to a number of decisions, which are dealt with herein below. 6. The issue as to whether a decision of the PSC, with regard to rejection of the candidature of an applicant, can be interfered with by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, has engaged the attention of this Court on many an occasion. In Kuriakose v. State of Kerala and others 1984 K.L.T. 925 the defect that was pointed out in respect of the candidate was that he had not produced the original records pertaining to his qualification at the time of interview by the Selection Committee. In Kuriakose v. State of Kerala and others 1984 K.L.T. 925 the defect that was pointed out in respect of the candidate was that he had not produced the original records pertaining to his qualification at the time of interview by the Selection Committee. The case before this Court involved a challenge by an unsuccessful candidate against the inclusion of another candidate in the rank list pursuant to the PSC waiving the lapse occasioned by the said candidate in not producing the original records at the time of interview. This Court, on going through the material on record, found that the candidate in question was duly qualified, and that it was essentially for the Authority, which makes the selection, to consider whether there was a violation of an important condition so as to reject the application of a candidate. It was found in the said case that, since the PSC had found that the omission was not fatal, there was no necessity for the court to interfere with the said decision, since there was no detriment to public interest. In Karnataka Public Service Commission and others v. B.M. Vijaya Shankar and others (1992) 2 S.C.C. 206 the defect that was pointed out in respect of candidates was that they had put the roll numbers on all pages of the answer sheet, when the specific instruction of the Karnataka Public Service Commission was that the roll number of candidates should be put only on the cover page of the answer sheet. The Supreme Court, while considering the matter, found that, as part of the procedure adopted by the Karnataka Public Service Commission, the first page of the answer book was invariably removed before submitting the answer papers for evaluation. It was therefore found that writing the roll numbers on the other pages of the answer sheet would have resulted in an unfairness to other candidates, and hence, it was a defect that was fatal to the applications of the candidates in question. It was found that the defect was of such a nature that, if condoned, would be against larger public interest. The decision taken by the Karnataka Public Service Commission was therefore upheld. It was found that the defect was of such a nature that, if condoned, would be against larger public interest. The decision taken by the Karnataka Public Service Commission was therefore upheld. In Sasikala, T. V. v. Kerala Public Service Commission and another 2012 (2) K.H.C. 441 a Division Bench of this Court had occasion to consider whether the rejection of an application by the PSC was justified in a situation where the applicant had not affixed a photograph that was taken within six months of the application date and had also not written his name and date of the photograph on the photograph itself. This Court found that the requirement of putting the name and date on the photograph was one that was necessary to identify the applicant so as to prevent a possible impersonation at the examination. This Court found that the defect noticed by the PSC could not be held to be a minor one, and therefore refrained from interfering with the decision of the PSC to reject the candidature of the applicant. Similarly, in Jude Joseph v. Kerala Public Service Commission 2013 K.H.C. 3356, a Division Bench of this Court, while noticing that the applicant had not affixed a photograph in his application form that matched the prescription of the PSC, found that the question as to whether a particular defect is a minor one or a major one, had to be decided by the PSC, and it was not a fit case for the Judiciary to intervene with the decision taken by the PSC. In that case, the matter was relegated to the PSC to decide the issue on a representation preferred by the candidate. In two unreported judgments of a Division Bench of this Court in O.P. (KAT) No. 2850/2013 and O.P. (KAT) No. 3013/2013, the decision of the PSC to reject the candidature of the applicants based on the irregularities noticed in complying with the conditions prescribed in the notification of the PSC, were not interfered with by this Court. In the latter case, it was held, following an earlier Division Bench decision of this Court in Kerala Public Service Commission v. Varghese I.L.R. 1977 (1) Kerala 523 that the PSC could not be compelled to exercise a discretion to waive any particular requirement. In the latter case, it was held, following an earlier Division Bench decision of this Court in Kerala Public Service Commission v. Varghese I.L.R. 1977 (1) Kerala 523 that the PSC could not be compelled to exercise a discretion to waive any particular requirement. The Division Bench went to the extent of holding that once non-compliance with the instructions of the PSC was established, then the court had no power to interfere with an order of rejection of the candidature of the applicant. In yet another Division Bench decision of this Court in Sreejesh Vijayan v. State of Kerala 2014 (1) K.L.T. 1003 , where the candidate had not written his name and date of the photograph on the photograph affixed in the application form, the Division Bench followed its earlier decision in Sasikala's case (supra). Similarly, in the decision in W.A. No. 504/2014, where the application submitted by the candidate did not contain the office seal of the employer, when there was a specific space provided in the application for the said seal, this Court found that the decision of the PSC, to reject the application, did not merit any interference in proceedings under Article 226 of the Constitution of India. Although the learned counsel for the petitioner would rely on the decision of a Division Bench of this Court in Kerala Public Service Commission, Tvm. and another v. Roshini, K. S. 2015 K.H.C. 662, the facts in that case would indicate that the defect pointed out by the PSC was that the date printed on the photo affixed in the application form was 15-12-2010, whereas, the instruction of the PSC indicated that the photo uploaded had to be one that was taken after 31-12-2010. While in the said case, the Division Bench dismissed the appeal preferred by the PSC against the judgment of the learned Single Judge, which allowed the writ petition filed by the candidate whose application had been rejected, the Division Bench judgment proceeds on the finding, on facts, that there was no material to show that the requirement of uploading a photograph taken after 31-12-2010 had been intimated to the candidate through any instruction on the website of the PSC. Thus, it was on the peculiar facts of that case, that this Court interfered with a decision of the PSC rejecting the application of the candidate. Thus, it was on the peculiar facts of that case, that this Court interfered with a decision of the PSC rejecting the application of the candidate. Similarly, in a decision of the Delhi High Court in Delhi Subordinate Services Selection Board and another v. Neeraj Kumar and another1, where, the Delhi Subordinate Services Selection Board [DSSSB] had rejected an application of a candidate who had applied for the post of Teacher (Primary) in the Municipal Corporation of Delhi, for the reason that contrary to the instructions in the advertisement, the applicant had signed his application in capital letters in English, as against the specific instruction which mandated that an application which contained a signature in block capital letters in English or in different languages and in different style/mode, would be treated as invalid and would be summarily rejected, the High Court found that since the identity of the candidate would be established from his photograph on the application form as well as the photograph affixed on the roll number issued to him by the examining body, the stipulation with regard to invalidity of an application, on the ground that the applicant's signature is in block capital letters in English, had to be treated as merely directory and not mandatory. The High Court then proceeded to hold that, for this reason alone, the candidature of the applicant did not had to be rejected since there was no prejudice caused to the Selection Board. 7. On an overview of the aforesaid judgments of the Supreme Court as also the High Courts, the broad principles that can be culled out, can be summarised as follows: "(i) The PSC is a constitutional body that is entrusted with the task of conduct of examinations and evaluation of candidates for appointment to public services under the State. It has to be borne in mind that the candidate in question has only a fundamental right to be considered for appointment to the post in question and it is the role of the PSC to evolve a procedure for laying down the mode and manner for consideration of such rights of the candidates. The decision as to whether any of the procedural requirements evaluated by the Commission are mandatory or directory, must therefore, vest with the PSC, at first instance. The decision as to whether any of the procedural requirements evaluated by the Commission are mandatory or directory, must therefore, vest with the PSC, at first instance. (ii) Once the PSC puts in place a procedure for evaluating candidates based on their inter se merit, then it becomes obligatory on the part of the applicants to comply with the said procedure, and a non-compliance with any such procedure could adversely affect the candidature of the applicant in question. (iii) While the tenor of the instructions issued by PSC in connection with the selection procedure could be a pointer to whether the instructions are mandatory or directory in nature, the discretion with regard to waiver of any requirement must necessarily vest with the PSC, at first instance, since it is a constitutional authority having expertise in the said field. (iv) While courts would generally be slow to second guess the wisdom of the PSC in categorising conditions/procedures, as mandatory or directory, it would only be in those cases where the procedural requirement breached has no demonstrable nexus with the object behind conducting an impartial assessment/evaluation of the merits of candidates, that this Court would interfere with the decision of the PSC in exercise of its powers under Article 226 of the Constitution of India. As a matter of fact, in that event, this Court would be discharging its role as the 'sentinel on the qui vive' to ensure that no injustice is meted out to any person. Such instances must necessarily be rare for, under ordinary circumstances this Court must defer to the wisdom of the PSC, itself a constitutional body, in areas that are within the area of expertise of the said body. Interference by a court with the decision of the PSC would only be in cases where there is manifest arbitrariness, discrimination, or the decision is found to be irrational, mala fide or unfair." In the instant cases, while the facts in W.P. (C) No. 20773/2016 are similar to those in the case of Sasikala, T. V. (supra) decided against the candidates by a Division Bench of this Court, the facts in W.P. (C)No. 17596/2016 also indicate that the PSC is of the view that the omission by the petitioner to put his signature under the declaration in the identification certificate cannot be treated as a trivial or minor defect. The petitioner had virtually abstained from signing a declaration with regard to the correctness of the details given in the identification certificate. The said omission cannot be said to be trivial or inconsequential. I am therefore of the view that the petitioners have not made out a case warranting an interference with the orders impugned in the writ petitions. The writ petitions therefore fail, and are accordingly dismissed.