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2019 DIGILAW 160 (KER)

Rajesh P. J. v. Sabu V. A.

2019-02-18

R.NARAYANA PISHARADI, V.CHITAMBARESH

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JUDGMENT : V. CHITAMBARESH, J. 1. The method of appointment to the post of Agricultural Officer Grade-II in the Department of Agriculture of the State is by direct recruitment and appointment by transfer in the ratio of 85% :15%. 13% out of the said 15% is reserved for those who have cleared VHSE in Agriculture and 2% for those who have a Degree in B.Sc. (Agriculture) from among the Agricultural Assistants in service. The candidates should have 10 years' service as Agricultural Assistant for appointment to the 13% posts and 3 years' service as Agricultural Assistant for appointment to the 2% posts. The candidates should also pass a suitability test conducted by the Kerala Public Service Commission ('the PSC' for short) the propriety of which falls for consideration in this bunch of cases. 2. The notification published in the Gazette dated 12.8.2011 by the PSC inviting applications from qualified Agricultural Assistants for the suitability test inter alia contained the following clause: “Answer shall be written either in English or in Malayalam [G.O.(Ms)No.141/2001/Agri dated 22.5.2001].” But the instructions issued to the candidates in the hall ticket preparatory to the test as well as the question paper for the suitability test conducted by the PSC on 19.1.2013 contained the following clause: “Answer should be written in English only.” The PSC had even earlier issued a clarification that the suitability test can be written either in English or in Malayalam by means of a press release in leading dailies as well as in their official website and bulletin. The fact remains that some of the candidates answered the question paper in English while some others in Malayalam and a few of them in both English and Malayalam languages. The results were published on 5.3.2014 and some of the candidates who performed badly had in the meanwhile moved the Kerala Administrative Tribunal ('the Tribunal' for short). It was contended that there was confusion about the medium of answering the question paper and hence sought for conducting a fresh suitability test after cancelling the results published. 3. The Tribunal noticed that some confusion would have occurred even though it was alleged that the invigilators in the examination halls had announced that the answers could either be in English or in Malayalam. 3. The Tribunal noticed that some confusion would have occurred even though it was alleged that the invigilators in the examination halls had announced that the answers could either be in English or in Malayalam. The Tribunal by the common order dated 27.6.2014 in O.A.Nos.868/2013 and 592/2014 disallowed the prayer made to annul the suitability test inter alia observing as follows: “8. But, the point to be decided is whether for granting them relief, the results of the examination should be annulled and there should be a direction to the Public Service Commission to hold a fresh test. We think, the same is not necessary. Notwithstanding all these adverse circumstances, certain candidates have cleared the examination. They are entitled to get the benefit of that and they are in no way responsible for the prejudice caused to the applicants. Therefore, the prayer of the applicants to set aside the results of the suitability test cannot be allowed.” (emphasis supplied) The Tribunal however granted relief by directing the PSC to hold a second suitability test and restore the seniority in service of the candidates in case they come out successful by observing as follows: “So, we order that if the applicants have taken the examination in English or in English and Malayalam and if they have failed; in such cases, if they clear the suitability test conducted by the Public Service Commission next time, they shall be treated as having cleared the test held on 19.1.2013 and in case, any of the applicants' juniors have superseded them in the matter of promotion to the post of Agricultural Officer Grade II, their seniority shall be restored over such juniors. The Public Service Commission shall verify the answer sheets of the applicants and find out whether they are eligible to get the benefit of the above direction, that is, they have taken the examination in English or in English and Malayalam and failed. A list of such persons among the applicants shall be forwarded by the Public Service Commission to respondents 43 and 44. A list of such persons among the applicants shall be forwarded by the Public Service Commission to respondents 43 and 44. Such candidates will be eligible for the aforementioned benefit of restoration of seniority, in case they succeed in the next suitability test held by the Public Service Commission and if in the meantime they are superseded by their erstwhile juniors.” (emphasis supplied) OP(KAT) Nos.274 and 329 of 2014 have been filed by those candidates who were successful in the first suitability test and whose seniority would be prejudicially affected by the direction of the Tribunal afore-quoted. 4. The Tribunal again by the common order dated 7.1.2016 in O.A.Nos.1523, 1790, 1949, 2011 and 2110 of 2014 granted similar reliefs to others who have failed in the first suitability test observing as follows: “6. Learned counsel for the party respondent in O.A.Nos.2011 of 2014 and 1949 of 2014 has raised a contention that since the applicants filed these Original Applications at a later point of time, they need not be restored their seniority even if they pass the test next time. But, we find that the applicants herein are also entitled for the benefit of the direction issued in Annexure A3 order, since the findings are in their favour and all similarly placed persons will have to be given a chance by the PSC. Therefore, we do not deem it proper to vary the directions issued in Annexure A3 as far as the applicants herein are concerned. Since Annexure A3 order has become final, we dispose of the Original Applications declaring that the direction issued in Annexure A3 will govern the applicants herein also.” (emphasis supplied) O.P.(KAT) Nos.263, 265, 266, 269 & 270 of 2017 have been filed by those candidates who were successful in the first suitability test and whose seniority would be prejudicially affected by the order afore-quoted. The PSC in the meanwhile conducted the second suitability test as directed by the Tribunal on 29.5.2017 and the results of the same were published on 25.4.2018. The candidates who were successful in the second suitability test moved the Tribunal again complaining that their seniority in service has not been restored as originally stated. The Tribunal by order dated 18.9.2018 in O.A.No.1660/2018 commanded the State to issue appropriate directions to the Director of Agriculture to restore the seniority within a time. The candidates who were successful in the second suitability test moved the Tribunal again complaining that their seniority in service has not been restored as originally stated. The Tribunal by order dated 18.9.2018 in O.A.No.1660/2018 commanded the State to issue appropriate directions to the Director of Agriculture to restore the seniority within a time. O.P.(KAT) Nos.362 & 363 of 2018 have been filed by the candidates who were successful in the first suitability test challenging the said consequential directions issued by the Tribunal. 5. It may at once be noted that none of the candidates who had failed in the first suitability test have challenged the order of the Tribunal in so far as it negatived their plea for cancellation of the results. The Tribunal has in fact given cogent reasons as to why the first suitability test should not be annulled since its beneficiaries are not responsible for the goof up if any by the PSC. The Tribunal has thought it fit to direct the PSC to conduct a second suitability test which was done and the results thereof stand independently on its own with prospective effect only. The results of the second suitability test cannot be fused with the results of the first suitability test and the seniority of the candidates cannot be restored with retrospective effect. The candidates who have become successful in the suitability test in the first and second chances cannot be treated on par and the seniority restored with effect from an anterior date. Such a direction in the orders impugned cannot be sustained when the Tribunal has chosen not to annul the first suitability test despite specific prayer put forth in that regard. 6. Reliance was placed on All India Railway Recruitment Board v. K.Shyam Kumar and others (2010) 6 SCC 614 to contend that the Government being the decision maker has the following options: i. To cancel the entire written test and to conduct a fresh written test inviting applications anew; ii. To conduct a re-test for those candidates who had obtained minimum qualifying marks in the first written test; and iii. To go ahead with the first written test. The contention in short is that the Government cannot be faulted with if they have decided to conduct a re-test for those candidates who have failed in the first suitability test on the orders of the Tribunal. To go ahead with the first written test. The contention in short is that the Government cannot be faulted with if they have decided to conduct a re-test for those candidates who have failed in the first suitability test on the orders of the Tribunal. Firstly, it was not the decision of the Government to conduct a second suitability test for those who have failed in the first suitability test and the same was imposed on it by the Tribunal. Secondly, there is no justification in law to pull up the seniority of the candidates who have passed in the second suitability test over those who have passed in the first suitability test. 7. It was contended that the candidates were aghast only when they were supplied with the question paper which contained an instruction to write the answers in English after they entered the examination hall. The candidates asserted that the plea of estoppel shall not therefore be held against them for having attended the first suitability test hoping to write the answers in Malayalam. But what prevented those candidates from challenging the legality of the first suitability test soon after it was conducted by the PSC without waiting for months together. Majority of the candidates had chosen to challenge the first suitability test only after the publication of the results and that too when they realised that they had not been successful in the same. The candidates having written the first suitability test without demur cannot be permitted to challenge its propriety after the declaration of the results on the principle of estoppel. It is trite law that a candidate cannot turn around and challenge the selection process after participating in the same [See: D.Sarojakumari v. Helen Thilakom (2017) 9 SCC 478 . 8. Yet another contention is that the Original Petitions are not maintainable inasmuch as the parties aggrieved can as well apply for review of the order of the Tribunal even if they are not eco-nominee parties therein. Reference was made to Section 22(3)(f) of the Administrative Tribunal Act, 1985 read with Rule 21 of the Kerala Administrative Tribunal (Procedure) Rules, 2010 in this regard. The combined effect of the above provisions is that 'no application for review shall be entertained unless it is filed within thirty days from the date of the order of which the review is sought'. The combined effect of the above provisions is that 'no application for review shall be entertained unless it is filed within thirty days from the date of the order of which the review is sought'. The petitioners not having been made parties to the Original Applications filed before the Tribunal were totally unaware of the orders passed therein for quite a long time. But the final orders passed by the Tribunal prejudicially affected the interest of the petitioners directly enabling them to question the same invoking the supervisory jurisdiction. The action of the contesting respondents in obtaining an order behind the back of the petitioners from the Tribunal however prejudicially affecting their interest borders on fraud. There is no statutory right for a stranger to apply for review which right can if at all be invoked with the leave of the Tribunal and the same has also become barred by limitation. [The application for review filed by the petitioners in is still pending before the Tribunal without even being numbered for want of leave and on account of delay]. We are not persuaded to hold that the remedy of the petitioners is only to move the Tribunal in the first instance when the legality of the very order passed by it has to be questioned. 9. We take cue from Gopabandhu Biswal v. Krishna Chandra Mohanty, (1998) 4 SCC 447 which of course dealt with a review by a third party of an order of Tribunal which had already been challenged by another. It was observed therein as follows: “If this is so, can a third party by filing a review petition get the same judgment reviewed and obtain an order that Gopabandhu Biswal is not entitled to the benefits of the directions contained in the main judgment since that judgment is now set aside? In our view this is wholly impermissible. It will lead to re-opening a matter which has attained finality by virtue of an order of this Court. The applicants, even they are persons aggrieved, do not have, in the present case a right of review under any part of Order 47 Rule 1.” The original order of the Tribunal though not challenged by any one in the instant case by a party thereto has attained finality by efflux of time and a third party cannot be compelled to apply for review at this distance of time. This is particularly so since the earlier orders of the Tribunal in the two sets of cases have been directed to be given effect to by the subsequent order in O.A.No.1660/2018. 10. Mr. Justice K.Surendra Mohan speaking for the Bench in O.P.(KAT) No.124/2014 made a review of the case law on the maintainability of similar Original Petitions and held as follows by judgment dated 4.1.2016: “In the facts and circumstances of the present case therefore, it is worth noticing that, the first respondent had made only the State and other authorities parties thereto. He had filed the writ petition challenging the rejection of objections submitted by him to his seniority. It cannot be disputed that, others presently placed above him would be adversely affected if his objections were accepted. Therefore, it was necessary for the affected parties to have been impleaded in his application. According to the petitioners, they are the persons adversely affected by the order of the KAT passed at the instance of the first respondent. The said order, prejudicial to their interests has been passed behind their back. Therefore, this is a case in which there has been violation of the principles of natural justice. It is trite that, an order passed in violation of the principles of natural justice is unsustainable and liable to be set aside. Any such order is also amenable to challenge before this Court under Articles 226 and 227 of the Constitution. For the above reasons, it is held that this Original Petition is maintainable.” (emphasis supplied) The Division Bench in so doing has distinguished the decisions in Rajeev Kumar v. Hemraj Singh Chauhan (2010) 4 SCC 554 and Girish Babu M.B. v. Pavithran T.T.V. (2013) 3 KHC 165 (DB) cited at the Bar. The former case dealt with impleading by third parties for the first time in the High Court without moving the Tribunal earlier and it is under these circumstances was the relief declined. The latter case dealt with sufficiency of qualification declared in favour of others for appointment and hence the third parties were directed to move the Tribunal in the first instance. None of the above two decisions is an authority for the proposition that a third party who suffers an adverse order behind his back can only apply for review and no other course is open. 11. None of the above two decisions is an authority for the proposition that a third party who suffers an adverse order behind his back can only apply for review and no other course is open. 11. Resultantly: i. The orders in O.A.Nos.868/2013, 592/2014, 1523/2014, 1790/2014, 1949/2014, 2011/2014, 2110/2014 and 1660/2018 of the Tribunal are quashed to the extent it directs the seniority of those who passed in the second suitability test held on 29.5.2017 to be restored over their juniors who had passed in the first suitability test held on 19.1.2013 in the cadre of Agricultural Officer Grade II. ii. It is declared that the second suitability test held on 29.5.2017 stands independently on its own and the results thereof declared act prospectively only which cannot be fused with the results of the first suitability test held on 19.1.2013 for the purpose of fixation of seniority of the incumbents in the cadre of Agricultural Officer Grade II in the Department of Agriculture of the State of Kerala. iii. The Original Petitions are allowed in part. No costs.