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2018 DIGILAW 71 (KER)

T. A. Anilkumar v. Kerala Public Service Commission, Thiruvananthapuram, Represented by Its Secretary

2018-01-18

DEVAN RAMACHANDRAN, P.R.RAMACHANDRA MENON

body2018
JUDGMENT : Devan Ramachandran, J. 1. Love it or loathe it, electronic means of communications have come to stay and has forever reshaped the ways of traditional methods of correspondence. The changing times are unmistakable because even the Government and its agencies now prescribe electronic methods as its preferred mode of communication and correspondence. 2. The Kerala Public Service Commission is perhaps a forerunner in this because they have, in the “General Conditions” published by them in relation to the various recruitment processes undertaken by them, stipulated that candidates and aspirants to the various posts to which they have applied will be informed about the “Test/interview through electronics media (Mobile/E-Mail)” (sic). 3. The petitioner herein does not challenge the stipulations in the General Conditions afore, but, asserts that he did not receive any electronic message or E-mail from the Commission regarding the practical tests that were held with respect to the post he had applied for and prays that he be given an additional opportunity to take the said test. Auxiliary to this prayer, he contends that it is not legally correct for the PSC not to inform the candidates directly through conventional and traditional modes of communication. 4. We are, in this judgment, finding against the petitioner and we will state the reasons after we first record the most needed facts. 5. The petitioner is an aspirant to the post of Driver Grade-II (LDV), to which a notification was issued by the Kerala Public Service Commission (hereinafter referred to as the PSC, for brevity) calling for applications from eligible candidates. The petitioner says that he is fully eligible and qualified to apply for the post and that he had responded to the notification through a valid application. 6. According to him, even though his application was accepted by the PSC, no intimation was given to him to appear for the practical test, even though such tests were scheduled by the PSC more than on one occasion. The petitioner, on such allegations, approached the Kerala Administrative Tribunal by filing O.A.No.2110 of 2017 seeking that the PSC be directed to permit him to participate in the practical test, in connection with the selection to the post of Driver Grade-II (LDV), by giving him one more opportunity. The petitioner, on such allegations, approached the Kerala Administrative Tribunal by filing O.A.No.2110 of 2017 seeking that the PSC be directed to permit him to participate in the practical test, in connection with the selection to the post of Driver Grade-II (LDV), by giving him one more opportunity. This prayer appears to have been made because the PSC had earlier issued Annexures-A5 and A6, rejecting his request for such an additional opportunity, stating therein that he had been given the intimation for appearing for such practical tests at least on two occasions through messages sent to his mobile phone by way of a Short Message Service (SMS) and to his E-mail address shown by him in his online profile uploaded on the internet page of the PSC. The petitioner challenged Annexures-A5 and A6 also before the Tribunal on the avouchment that, contrary to what is stated therein, he had not received the intimation of the schedule of the practical test. 7. The learned Tribunal, after considering the pleadings and materials on record, concluded that even though the petitioner was given two opportunities and even though communications, asking him to appear for the practical test, were issued to him at least on two occasions, he had failed to do so. The learned Tribunal specifically adverted to the SMS messages said to have been sent by the PSC to the petitioner on 9.12.2016 and 12.4.2017 and held that the petitioner is not, therefore, justified in seeking more than this for being communicated about the factum of holding of the practical test and was, therefore, pleased to hold that the Original Application and the prayers made therein lacks merit. 8. The learned Tribunal thus dismissed the Original Application concluding that the grant of any further opportunity to applicants like the petitioner would set a bad precedent and would prejudicially affect the selection process conducted by the Public Service Commission. 9. The petitioner challenges the order of the learned Tribunal before us again on the singular factual assertion that he was not intimated by the PSC through any of the methods that was imperatively postulated by the notification. 10. We have heard the learned counsel for the petitioner Shri A. Jayasankar; the learned Standing Counsel appearing for the Public Service Commission, Shri P.C. Sasidharan and the learned Government Pleader, Shri Antony Mukkath. 11. 10. We have heard the learned counsel for the petitioner Shri A. Jayasankar; the learned Standing Counsel appearing for the Public Service Commission, Shri P.C. Sasidharan and the learned Government Pleader, Shri Antony Mukkath. 11. When this matter was earlier taken up on 30.11.2017, we had directed the PSC to file a statement or an affidavit, as they are advised, to place on record the manner in which the intimation of the practical test was served on the petitioner. We had made this order specifically for the reason that the petitioner had predicated rather vehemently before us that he had received no intimation at all regarding the practical test. Since the underpinning of the entire case, held out before us by the petitioner, is the singular question as to whether he had been properly intimated by the PSC regarding the practical test conducted by them in connection with the recruitment of Driver Grade-II (LDV), we thought it fit and apposite to allow sufficient materials to be brought on record by the parties, to show such intimation by the PSC or otherwise, and this, obviously, would go a long way in the resolution of the disputes in this case. 12. The Public Service Commission, we notice, has now filed a counter affidavit, dated 9.1.2018, wherein they have produced Exts.R1(a) and R1(b) reports indicating the sending and delivery of SMS messages to the petitioner to his registered mobile phone. It is also specifically stated therein that an E-mail containing the schedule of the tests was also sent to the address of the petitioner furnished by him in his online profile. 13. The learned Standing Counsel appearing for the PSC contends that, as per the general conditions applicable to the various posts to which recruitments are conducted by the PSC, the candidates are directed to show their mobile number and E-mail ID in the application and that Clause 30 of the said instructions provide that the candidates will be informed of the test/interview through electronic media (mobile/E-mail). The specific clause in the General Conditions is as under: “30. Candidates who include their Mobile Number/e-mail ID in the application will be informed about Test/Interview through Electronics media (Mobile/e-mail).” 14. The specific clause in the General Conditions is as under: “30. Candidates who include their Mobile Number/e-mail ID in the application will be informed about Test/Interview through Electronics media (Mobile/e-mail).” 14. According to the learned Standing Counsel, this has been so prescribed in the general instructions clearly so that no candidate will raise a plea that they did not receive the communication by post or such other conventional means and to ensure that every candidate would be treated similarly by giving them intimation through electronic media. The learned Standing Counsel thus contends that the PSC is only obligated, as per the general conditions aforementioned, to give the intimation of the test/interview to the various candidates through electronic media and that nothing more is legally entitled to the candidates in this regard. He, however, adds that in addition to this, the PSC had given public intimation to all candidates about the practical test in this case by publication of the schedule of the tests, in mainstream newspapers, through broadcast by the All India Radio and information in the PSC Bulletin. He says that nothing further, therefore, was required to be done by the PSC. 15. The learned counsel appearing for the petitioner au contraire submits that even though Exts.R1(a) and R1(b) have been placed on record by the PSC to show that information had been sent to his client through SMS, it does not really improve their case. According to him, Ext.R1(a) relates to the SMS messages allegedly sent to the petitioner on 9.12.2016 and 12.4.2017, regarding the practical test which was scheduled to be held at Thrissur. He says that though the first page of Ext.R1(a) shows that two SMS messages were sent to the petitioner, its second page makes it indisputable that the SMS message, sent on 12.4.2017, was rejected, while there is no delivery report with respect to the SMS message sent on 9.12.2016, which would only warrant an inference that the latter was also not served on the petitioner. As regards Ext.R1(b), he submits that though it shows that two SMS messages were sent to the petitioner by the PSC on 13.7.2016 and 21.7.2017, there is nothing to show that the first of them was delivered to the petitioner. As regards Ext.R1(b), he submits that though it shows that two SMS messages were sent to the petitioner by the PSC on 13.7.2016 and 21.7.2017, there is nothing to show that the first of them was delivered to the petitioner. The learned counsel, however, concedes that with respect to the SMS message sent on 21.7.2017, the said document records that it was delivered to the mobile number of the petitioner. His contention, however, is that the alleged delivery report with respect to the SMS sent on 21.7.2017 is not a conclusive proof and that he reiterates vehemently that his client did not receive the same. 16. In the backdrop of the above circumstances and facts, we are drawn to consider whether the petitioner can be given an additional opportunity for appearing in the practical test, especially when he asserts that he did not receive information about the conduct of the same when it was held in Thrissur and Ernakulam. 17. One thing, which is certain, even going by the documents on record, is that the SMS message that was sent to the petitioner on 21.7.2017 by the PSC had been delivered to him and his assertions to the contrary can only be seen to be a self serving one in the absence of any cogent and credible evidence to the contrary. In any event, even if this is true, we are afraid that we will not be in a position to affirmatively conclude upon the same, since this is an issue squarely falling in the domain of facts and the well recognized restrictions in jurisdiction of this Court, while acting under Article 227 of the Constitution of India, to deal with disputations of fact would proscribe us from entering into any further discussion on the same. 18. That being so, we also notice the uncontroverted submission of the PSC that the intimation regarding the practical test had been given to all candidates through a radio broadcast made by the All India Radio, by way of information in the bulletin maintained by the Public Service Commission and publication through mainline newspapers. In addition to this, even the petitioner concedes that the intimation may have been sent to his E-mail address declared by him in his online profile. In addition to this, even the petitioner concedes that the intimation may have been sent to his E-mail address declared by him in his online profile. After conceding so, the petitioner submits that since he is an illiterate person, engaged as a stone mason, he had not been following or reading his E-mails or watching the internet page of the PSC regularly and thus that he was not aware of any such E-mail. We are afraid that this is not a reason for this Court to intervene in or interfere with the lawful procedure complied by the PSC and the inadvertence, omission or the failure of the petitioner to keep track of the E-mail and SMS messages received by him would not be sufficient cause for this Court to issue orders, even on sympathetic or such other grounds. 19. Further, the fact that the petitioner is shown to have been served with an SMS, at least with respect to the test that was scheduled in Ernakulam, would be good reason to deny relief to him because the tests which was scheduled both in Thrissur and Ernakulam related to the same post and not to different posts, as is now sought to be made out by the petitioner. In other words, his participation in any of these practical tests would have inured to him the benefit of selection, if he was otherwise qualified to the post. The fact that he did not avail of the opportunity in Ernakulam would therefore disentitle him to any further opportunity. 20. We see that the learned Tribunal has considered these factual factors in its proper perspective and has found that, in spite of two opportunities having been afforded to the petitioner, he had not availed of the same in appearing for the practical test. We also notice that, in more or less similar circumstances and in a case where analogous facts were presented, this Court has already taken a view, in O.P(KAT) No.242 of 2017, that service of intimation by SMS and other electronic methods, as is mandated in the general conditions published by the PSC, would be sufficient notice and that no further latitude can be shown to any of the candidates. This view has also been followed by the Kerala Administrative Tribunal in Ext.P3 order delivered by them in a similar matter, which has been produced on record by the petitioner himself. This view has also been followed by the Kerala Administrative Tribunal in Ext.P3 order delivered by them in a similar matter, which has been produced on record by the petitioner himself. Therefore, the petitioner cannot be heard to claim any benefit different to this and, in our view, he is not justified in requesting for further opportunity, even though he had been intimated properly through electronic media and other prescribed methods. In the summary of the above, we are of the firm view that this Original Petition is bereft of merits and that it consequently deserves to be dismissed. We order so.