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2018 DIGILAW 438 (KER)

Kerala Public Service Commission, Represented by the Secretary v. Thirtha Thankakuttan

2018-06-12

ANNIE JOHN, K.SURENDRA MOHAN

body2018
JUDGMENT : Surendra Mohan, J. These Original Petitions are all filed by the Kerala Public Service Commission ('PSC' for short) and its District Officer challenging a common order dated 7.12.2016 of the Kerala Administrative Tribunal ('KAT' for short) allowing a number of Original Applications. The applicants before the KAT are the respondents in these writ petitions. They are all candidates who had applied for selection and appointment to the posts of Lower Division Typist and Clerk Typist/Typist Clerk responding to Annexures A1 and A2 Notifications issued by the PSC. As per the impugned order, the KAT has found that the respondents in these cases were all eligible and qualified to be considered for the selection. Therefore, the PSC has been directed to reconsider the rejection of their applications. The PSC is before us aggrieved by the said direction. 2. As already noticed above, the respondents are all persons who had responded to the Notifications Annexures A1 and A2. The qualifications prescribed as per Annexures A1 and A2 are identical. What is stipulated are a pass in plus two or its equivalent, Lower Grade Certificate in KGTE Malayalam Typewriting or its equivalent and Lower Grade Certificate in KGTE English Typewriting and Computer Word Processing or its equivalent. The respondents are persons who have completed Typewriting Malayalam (Lower). However, they have not been issued with a certificate for the reason that they have not passed Paper III Word Processing, which is part of the Course. In view of the above, the PSC rejected their applications stating that they do not possess the required qualification as on the date of their applications. The respondents had approached the KAT challenging the said action of the PSC. 3. According to the applicants, going by the Notifications, the qualification stipulated only required a candidate to pass the KGTE Malayalam Typewriting (Lower). A pass in Computer Word Processing is not stipulated as a qualification. Therefore, it was contended that they have satisfied the eligibility criteria for being considered for selection and appointment to the notified posts. For the reason that they had not passed the Word Processing paper, they had not been issued with the formal certificates. According to them, therefore, their marklists produced in support of their claims ought to have been accepted as sufficient proof of their qualification and they ought to have been considered for appointment. 4. For the reason that they had not passed the Word Processing paper, they had not been issued with the formal certificates. According to them, therefore, their marklists produced in support of their claims ought to have been accepted as sufficient proof of their qualification and they ought to have been considered for appointment. 4. The PSC contested the claims of the respondents pointing out that they did not possess the essential qualification that was stipulated by the Notifications Annexures A1 and A2. It was for the said reason that their applications had been rejected. According to them, the course consisted of Malayalam Typewriting (Lower) as well as Computer Word Processing. Only after completing successfully both the components of the Course, a Certificate would be issued to a candidate. Since no Certificate had been issued to the candidates as on the date of the Notifications, it was contended that they are ineligible to be considered. 5. The KAT considered the respective contentions, found that since the respondents had passed their Malayalam Typewriting Lower Examination, they satisfied the qualifications stipulated by the Notifications Annexures A1 and A2. Holding that it was not necessary for them to pass the Computer Word Processing part of their course for the purpose of being eligible to be considered under the Notifications Anenxures A1 and A2, a direction has been issued to treat the respondents as eligible, to verify their individual qualifications and to permit them to participate in the selection process. 6. According to Adv. P.C. Sasidharan who appears for the PSC, Annexures A1 and A2 stipulate the qualifications that are necessary to be satisfied for a candidate to apply to the notified post. For being considered, a candidate should possess apart from a pass in Plus two or its equivalent, Lower Grade Certificate in KGTE Malayalam Typewriting or its equivalent. Admittedly, none of the respondents possess such a certificate. Their case is that, since what is stipulated is only a qualification with respect to Malayalam Typewriting, a qualification in Word Processing was not necessary. The said case, according to the learned counsel cannot be accepted as satisfying the requirement stipulated by the Notification. The KAT seriously erred in accepting the case of the respondents, it is contended. Therefore, the counsel seeks interference with the impugned order of the KAT. 7. Adv. The said case, according to the learned counsel cannot be accepted as satisfying the requirement stipulated by the Notification. The KAT seriously erred in accepting the case of the respondents, it is contended. Therefore, the counsel seeks interference with the impugned order of the KAT. 7. Adv. Kaleeswaram Raj who appears for the respondents meets the above contentions by pointing out that in order to understand the true import of the qualification prescribed in paragraph 7 of the Notifications, a comparison would have to be made of the wordings by which the qualification is prescribed for Malayalam as well as English Typewriting. In so far as Malayalam Typewriting is concerned, what is stipulated is a Lower Grade Certificate in KGTE Malayalam Typewriting or its equivalent. In sharp contrast, in the case of English, a Lower Grade Certificate in KGTE English Typewriting and Computer Word Processing is stipulated. The fact that Computer Word Processing has been specifically included as part of the qualification to English Typewriting, and the absence of any such specification in the case of Malayalam Typewriting shows beyond a shadow of doubt that the authorities did not intend Computer Word Processing to be a part of the qualification stipulated for Malayalam Typewriting. In other words, there has been a conscious exclusion of the requirement of a pass in Computer Word Processing while stipulating the qualification for Malayalam Typewriting. Viewed in the above perspective, it is contended that the respondents were all possessed of the required qualification, a pass in KGTE Malayalam Typewriting. Their only shortcoming was that they have not been issued with a certificate for the reason that they had not passed the Computer Word Processing part of the Course. In such circumstances, according to the learned counsel, the marklist that proves the eligibility of the candidates should be accepted. Therefore, the KAT has rightly found that the respondents are eligible as per the stipulations in Annexures A1 and A2 notifications. The learned counsel places reliance on the decision in Charles K. Skaria v. Dr. C. Mathew ( (1980) 2 SCC 752 ) as well as Dolly Chhanda v. Chairman, JEE ( (2005) 9 SCC 779 ) to contend that in the absence of the certificate that is stipulated by the Notifications, other authentic documents in proof of acquisition of such qualification could be accepted. C. Mathew ( (1980) 2 SCC 752 ) as well as Dolly Chhanda v. Chairman, JEE ( (2005) 9 SCC 779 ) to contend that in the absence of the certificate that is stipulated by the Notifications, other authentic documents in proof of acquisition of such qualification could be accepted. Even for the said purpose, only substantial compliance is necessary as held by the Apex Court in Dheerender Singh Paliwal v. Union Public Service Commission ( (2017) 11 SCC 276 ), it is contended. 8. According to Adv. B. Premnath who appears for respondents 1 and 2 in O.P.(CAT) No. 220 of 2017, in the case of one of his clients, the PSC has, while verifying her Certificate, described her as having passed Typewriting Malayalam (Lower) as evident from Annexure A14 in the said Original Petition. Therefore, it is contended that the candidates are all eligible for being considered. 9. According to the learned Government Pleader, the KGTE Typewriting Course was revised and as per G.O.(MS) No. 96/2001/H.Edn. Dated 16.8.2001, a copy of which has been handed over to us across the bar, the name of the certificate issued under the revised scheme for English Typewriting has been altered as 'K.G.T.E. -Typewriting in English (Lower/Higher) and Computer Word Processing'. The KGTE Malayalam Typewriting Course has also been revised as per G.O. (MS) No. 369/10/H.Edn. Dated 9.11.2010 including Word Processing as a subject for the said course. However, the Certificate is still called 'KGTE Malayalam Typewriting'. According to the learned Government Pleader, it is the revised nomenclature that finds a place in Annexures A1 and A2. 10. The counsel for the PSC has drawn our attention to Ext.P3 communication received from the Office of the Commissioner of Government Examinations intimating them that as per Rules, only a candidate who has passed Computer Word Processing also, would be issued with a KGTE Certificate. Since the respondents are not possessed of the KGTE Certificate that is stipulated by the Notifications, it is contended that they are not eligible to be considered for selection. 11. Heard. Clause 7 of Annexure A1 Notification which is identical to the qualification prescribed by Annexure A2 also, is extracted hereunder for convenience of reference. “7. Qualifications:- (1) Pass in Plus 2 or its equivalent. (2) Lower Grade Certificate in KGTE Malayalam Typewriting or its equivalent. 11. Heard. Clause 7 of Annexure A1 Notification which is identical to the qualification prescribed by Annexure A2 also, is extracted hereunder for convenience of reference. “7. Qualifications:- (1) Pass in Plus 2 or its equivalent. (2) Lower Grade Certificate in KGTE Malayalam Typewriting or its equivalent. (3) Lower Grade Certificate in KGTE English Typewriting and Computer Word Processing or its equivalent. Those who have passed KGTE Typewriting (English) Lower before January 2002 should produce separate certificate in Computer Word Processing or its equivalent. (G.O.(MS) No. 21/2011/P&ARD dated 01.07.2011).” The controversy in the present case is confined to the qualification that is stipulated as per Sl. No. (2) above. In the first place, what is prescribed as the qualification is the possession of 'Lower Grade Certificate in KGTE Malayalam Typewriting or its equivalent'. It is not in dispute that, none of the respondents possess the Lower Grade Certificate in KGTE Malayalam Typewriting or its equivalent. 12. The respondents in these cases are all persons who have undergone the course. The course consists of three papers as evident from the marklist produced. Paper III comprises of Part I and Part II (Computer Word Processing). None of the respondents have passed Paper III which forms part of the course. Their marklists evidenced by Annexures A3 to A8 in O.P.(CAT) No.189 of 2017 show that they have failed in Paper III. It is for the said reason that they have not been issued with the KGTE Malayalam Typewriting (Lower) Certificate. Therefore, it is clear that they do not satisfy the qualification that is stipulated by Sl. No. (2) of Clause 7 of Annexures A1 and A2 Notifications, extracted above. 13. The case of the respondents is that a pass in Computer Word Processing has not been stipulated as part of the qualification relating to Malayalam Typewriting. Therefore, it is not necessary for them to possess the said qualification. A comparison of the stipulations in Clause (3) of Paragraph 7 of the Notification is made to contend that in the case of English Typewriting, Word Processing has been specifically mentioned as a required qualification. The answer of the petitioners as well as the Government Pleader to the said contention is that the nomenclature of the Certificate is mentioned as the qualification. There is a difference in the nomenclature in so far as it relates to English Typewriting and Malayalam Typewriting are concerned. The answer of the petitioners as well as the Government Pleader to the said contention is that the nomenclature of the Certificate is mentioned as the qualification. There is a difference in the nomenclature in so far as it relates to English Typewriting and Malayalam Typewriting are concerned. In the case of Malayalam Typewriting, the certificate is merely 'Lower Grade Certificate in KGTE Malayalam Typewriting'. Whereas in the case of English, it is called 'Lower Grade Certificate in KGTE English Typewriting and Computer Word Processing'. What the respondents are trying to achieve is to build up a contention on the basis of the difference in the nomenclatures to argue that Word Processing is not a necessary qualification as far as KGTE Malayalam Typewriting is concerned. The above contention is without any justification for the reason that a perusal of the Government Orders, G.O.(MS) No. 96/2001/H.Edn. dated 16.8.2001 and G.O.(MS) No. 369/10/H.Edn. dated 9.11.2010 referred to above, shows that the certificate to be issued with respect to English Typewriting is titled 'KGTE -Typewriting in English (Lower/Higher) and Computer Word Processing.” At the same time, in Malayalam, though the course includes Computer Word Processing also, the Certificate is only 'Lower Grade Certificate in KGTE Malayalam Typewriting'. The above being the factual position, nothing turns on the fact that the words 'Computer Word Processing' is absent in Sl. No. (2) qualification in paragraph 7 of Annexures A1 and A2 Notifications. Apart from the above, what is stipulated by the qualification is the possession of a Certificate. The respondents do not even have a case that they are possessed of the certificate that is stipulated as the qualification. Since they do not have the requisite Certificate, we are not satisfied that they have any right to claim eligibility as per the Notifications of the PSC. 14. It is relevant in the above context to refer to the communication dated 6.8.2016 evidenced by Ext.P3 in O.P. (KAT) No. 189 of 2017 issued by the Commissioner of Examinations to the PSC in which it has been clearly mentioned by the Commissioner of Examinations that the syllabus for the certificate course has been altered with effect from January, 2002. As per the revised Scheme, the name of the certificate is 'Typewriting in English (Lower/Higher) and Computer Word Processing'. As per the revised Scheme, the name of the certificate is 'Typewriting in English (Lower/Higher) and Computer Word Processing'. It is further stated that only a person who passes in both Typewriting and Computer Word Processing would be issued with a Certificate and that there is no impediment in issuing the marklist. It is further conceded that the Malayalam Typewriting Course was also similarly altered to include Word Processing. As per the revised syllabus, only a person who passes both the parts of the course, Typewriting as well as Word Processing would be issued with a certificate. It is therefore clear that persons who pass only in one part of the composite certificate course cannot claim that they are holders of certificates in KGTE Malayalam Typewriting, as contended in these cases. The KAT erred in accepting the said contention and holding that the respondents were eligible to be considered for selection in accordance with the stipulations in Annexures A1 and A2. 15. The learned counsel for the respondents has placed reliance on the decision in Charles K. Skaria v. Dr. C. Mathew (supra) particularly paragraphs 20 and 21 to contend that in the absence of a proper certificate, the marklist could be relied upon. But, what we notice from the facts of the said case is that, it was a case in which the candidate was the holder of a Diploma as on the last date for submission of the application. But, the formal Diploma had not been issued to the candidate. Since the stipulated qualification had been acquired before the last date, the court held that other modes of proof to substantiate the claim could be accepted. The relevant passage from paragraph 20 of the said decision reads as follows: “... What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for the application makes sense. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for the application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate the merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above-board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence.” The above dictum has been followed in Dolly Chhanda v. Chairman, JEE (supra). After quoting with approval the judgment in Charles K. Skaria v. Dr. C. Mathew (supra) it has been stated that a person who had acquired the requisite qualification could support his claim by producing other authentic documents. We notice that, the Apex Court has gone to the extent of laying down in Dheerender Singh Paliwal v. Union Public Service Commission (supra) that, even substantial compliance was sufficient. Paragraph 14 relevant in the context reads as under: “14. Having considered the respective submissions and having noted the dictum of this court as noted above, we are of the view that in the light of the prescription noted in the advertisement, the particulars furnished by the appellant in response to the said advertisement and the production of the degree certificate for having secured the B.Sc. Degree with Zoology as the subject at a later point of time there was substantial compliance with the requirement to be fulfilled in the matter of the essential qualifications possessed by the appellant. Degree with Zoology as the subject at a later point of time there was substantial compliance with the requirement to be fulfilled in the matter of the essential qualifications possessed by the appellant. Therefore, applying the principles set down by this Court, the respondent Commission ought to have considered the application and more so when the appellant was already in the service of the Forensic Science Laboratory as Senior Scientific Assistant and his essential qualifications were very much on record in the form of resume and therefore pursuant to the direction of the Tribunal when the respondent Commission interviewed the appellant and found him fit to be selected and appointed for the post of Senior Scientific Officer in all fairness should have appointed the appellant.” 16. However, in contrast to the fact situation in the decisions referred to above, the respondents in these cases are persons who did not satisfy the qualifications stipulated by Annexures A1 and A2 Notifications. They are persons who have failed in the certificate course for Lower Grade in KGTE Malayalam Typewriting. They do not have a Lower Grade Certificate in KGTE Malayalam Typewriting or its equivalent, the qualification stipulated by Annexures A1 and A2 notifications. It is not open to them to say that pass in two papers of the said course should be considered as sufficient to entitle them to participate in the selection process. Any such permission would mete out injustice to those who have successfully completed the course and applied for the posts. We should remind ourselves that there would be many other candidates who would not have applied accepting the fact that they were not qualified to apply for the notified post in view of the qualifications stipulated by the Notifications. The KAT was wrong in finding that the respondents herein had satisfied the qualifications stipulated by Annexures A1 and A2 Notifications and directing that they should be considered for selection and appointment to the notified posts. For the foregoing reasons, the petitioners are entitled to succeed. These Original Petitions are allowed. The impugned order of the KAT dated 7.12.2016 in O.A. (EKM) No. 1482 of 2016 and connected cases are set aside.