Anoop Chand v. State of Kerala and Others

**OP(KAT).No.545 OF 2019** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941** ## **OP(KAT).No.545 OF 2019** **AGAINST THE ORDER DATED 5.4.2019 IN R.A.NO.28/2016 IN OA 174/2014 DATED 05-04-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/1ST RESPONDENT:** **ANOOP CHAND AGED 44 YEARS S/O.KOCHAYYAPPAN, AJAYA BHAVAN, MANAKARA(BHARANIKAVU),SASTHAMCOTTA.P.O, KOLLAM-690521.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN** ## **RESPONDENTS/REVIEW APPLICANT:** **1 SHEEJA K.S. ASSISTANT PROFESSOR OF JOURNALISM, DEPARTMENT OF MASS COMMUNICATION, N.M.S.M. GOVERNMENT COLLEGE, KALPETTA, WAYANAD-657492. RESIDING AT KOLLATT HOUSE, PALLILAMKARA NORTH, H.M.T.COLONY.P.O, KALAMASSERY, ERNAKULAM-683503. 2 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, COLLEGIATE EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **OP(KAT).No.545 OF 2019** **2** **3 THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM.P.O, THIRUVANANTHAPURAM-695004.** **R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. SMT.N.SANTHA R1 BY ADV. SRI.V.VARGHESE R1 BY ADV. SRI.PETER JOSE CHRISTO R1 BY ADV. SRI.S.A.ANAND R1 BY ADV. SMT.K.N.REMYA R1 BY ADV. SMT.L.ANNAPOORNA R1 BY ADV. SHRI.VISHNU V.K. R1 BY ADV. KUM.ABHIRAMI K. UDAY SR.GP SRI.T.RAJASEKHARAN NAIR** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 13.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No.545 OF 2019** **3** ## **JUDGMENT** ## **Dated this the 13th day of March 2020** ## K.Vinod Chandran, J The petitioner challenges the order in review, of the Tribunal, filed by the 1[st] respondent, who was never made a party in the Original Application. Before we go into the merits of the matter, we have to look at the chronology of events. 2. The Public Service Commission came out with a notification Annexure A1 dated 31/12/2009 for the purpose of selection to the post of Lecturers in Home Science, Electronics and Journalism. We are concerned only with the two posts of Lecturer in Journalism. The essential qualification prescribed is a Masters Degree in the concerned subject with at least 55% marks. There were also certain relaxations, which we need not look into. Annexure A6 is a circular issued by the Public Service Commission granting weightage for non qualifying M.Phil, Ph.D etc. The petitioner is said to have acquired M.Phil in Future Studies from the University of Kerala. The petitioner applied for selection and also figured in the rank list published by the Public Service Commission at Annexure A17. The petitioner was at rank No.30. The two persons appointed were one from the merit quota and another from the reservation quota of Scheduled **OP(KAT).No.545 OF 2019** **4** Caste. The petitioner cannot have any claim to the merit quota since his rank number is 30. The second candidate appointed had rank No.28 and she was a Scheduled Caste candidate. 3. After publication of the rank list, the petitioner approached the Tribunal with O.A.No.174/2014 claiming weightage for the M.Phil in Future Studies. However, the petitioner did not implead any of the persons in the rank list, in the Original Application. The Original Application was allowed as per Ext.P4 order. The applicant was directed to be granted weightage for the M.Phil degree. In this context, we have to note the specific dates, which are as follows: Annexure A1 notification had 17.2.2010 as last date for application. Annexure A17 rank list was published on 22.7.2013. The Original Application was filed on 21.1.2014 and allowed by Ext.P4 on 4.4.2016. By this time, the 1[st] respondent, who was not even made a party in the Original Application was advised by the Public Service Commission on 22.8.2015 and an appointment order was issued on 25.9.2015 and she joined duty on 15.10.2015. It was subsequent to this the Original Application was allowed on 4.4.2016. 4. The petitioner again sought for appointment impleading the 1[st] respondent by O.A No.1343/2016. On being **OP(KAT).No.545 OF 2019** **5** issued with a notice in the said Original Application, the 1[st] respondent came to know of the earlier order and she promptly filed a review from that order. In the review, the Tribunal found that the prescribed qualification for admission to M.Phil in Future Studies is Masters Degree in Applied Science and Technology/Science/ Engineering/Applied Science/Engineering and Technology. In such circumstances, the Tribunal found that M.Phil being not in the concerned subject, there could be no weightage granted to the petitioner. Later O.A.No.1343/2016 also stood closed on the basis of the order in the review application. 5. Before us, the learned Senior Counsel appearing for the petitioner submitted that the Prospectus relied on by the Tribunal was of 2016, while the petitioner had acquired M.Phil. in the year 2009. It is also submitted that Ext.P11 has now been produced to show that earlier Post Graduates in Journalism were also admitted to M.Phil in Future Studies. If the petitioner is granted the weightage, the petitioner would have to be given the rank 24A in which case he would have to be preferred as a Scheduled Caste candidate over the 1[st] respondent. 6. The learned counsel for the 1[st] respondent however submitted that the petitioner had not approached the Tribunal **OP(KAT).No.545 OF 2019** **6** with clean hands especially since the 1[st] respondent was not impleaded. It is also submitted that an order of the Public Service Commission rejecting the request of the petitioner to grant weightage to M.Phil in Future Studies which was a decision taken earlier on and evident from Annexure A13 was never challenged by the petitioner. By the time, the Original Application was allowed, the 1[st] respondent was appointed and she was continuing in the said post. She was never impleaded in the Original Application at the earlier stage. 7. Annexure A1 notification does not speak about weightage. However, we see from Annexure A17 rank list that weightage of 4 marks has been granted to three candidates and two marks to one candidate. The weightage obviously is based on a circular issued by the Public Service Commission as seen from Annexure A6. Annexure A6 prescribes weightage of 4 marks for non qualifying Ph.D and two marks for non qualifying M.Phil. Obviously, such weightage can only be granted if the M.Phil is in the concerned subject. When there is a required qualification of Post Graduation, the M.Phil or Ph.D should be in that concerned subject and not in any other subject. 8. In this context we have to look at the submission of the learned Senior Counsel that earlier Journalism was one of **OP(KAT).No.545 OF 2019** **7** the required qualification for the purpose of M.Phil programme in Future Studies. Ext.P11 is the prospectus of 2012-13. Annexure A-7 is relied on to contend that Kerala University enables eligibility of M.Phil & Ph.D in interdisciplinary areas, to posts for which the basic qualification is the Post Graduate Degree. Hence Masters in Journalism being a prescribed qualification for enrolling in the M.Phil course in Future studies and that being the required qualification for the post notified, weightage has to be conceded to the applicant. 9. We have to immediately notice that Annexure A-7 is an order issued by the Kerala University and applies only to the posts in the University. The present notification is in the Collegiate Department, under the Government and there is no similar order issued by the Government. The petitioner had acquired his qualification in 2009 and we would assume that the prospectus of 2009 was also similar to the prospectus of 2012-13 wherein candidates with a Post Graduation inter-alia in Journalism with not less that 55% marks in aggregate, were eligible for admission to the M.Phil course in Future Studies. That however does not make the M.Phil a degree, one granted in the concerned subject of the Masters degree. Even going by Annexure A-7 it can only be said to be an interdisciplinary **OP(KAT).No.545 OF 2019** **8** subject. We also notice that the syllabus as seen from Ext.P11 has only one elective for the students of Mass Communication/ Journalism. This further belies the claim for weightage, which is permissible only if the candidate possess a M.Phil or Ph.D in the concerned subject. For example even today, when the essential qualification for admission to the specific M.Phil course is a Masters in Engineering; the M.Phil in Future Studies cannot be termed to be a M.Phil in Engineering. 10. We cannot also ignore the fact that the petitioner had not impleaded the 1[st] respondent when the Original Application was filed originally. We refer to the judgment of the Hon'ble Supreme Court in **Anupal Singh and others v. State of Uttar Pradesh [2020(2) SCC 173]** wherein the Hon'ble Supreme Court reiterated that when selection of successful candidate is challenged they should be impleaded in the proceedings. The petitioner was aware of the rank list issued at Annexure A17. None of the persons included in the rank list were impleaded before the Tribunal. It is also pertinent that the petitioner who had eligibility to claim reservation as a Scheduled Caste candidate was also aware of the fact that there was one other Scheduled Caste candidate in the rank list, who figured at a rank above him. Hence the petitioner had a duty to implead the said candidate who would **OP(KAT).No.545 OF 2019** **9** be pushed down if the weightage claimed by the petitioner was granted by the Public Service Commission or by the Tribunal. 11. The learned Standing Counsel for the Public Service Commission also submits that the Original Application has not been filed on the basis of his reservation status alone. In fact the petitioner should have impleaded all the candidates above him, especially when the rank list has the validity of three years and it cannot be predicted as to how many vacancies arise in the validity period. We find that the petitioner has failed to implead the affected parties in the O.A and that he has no sustainable claim for weightage. On both these grounds, we do not find any reason to interfere with the order of the Tribunal. We hence uphold the order in review impugned here and leave the parties to suffer their costs. ## **Sd/-** ## **K.VINOD CHANDRAN** ## **JUDGE** ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** **ab** **OP(KAT).No.545 OF 2019** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1(OA) CERTIFIED COPY OF THE O.A.NO.174/2014 OF THE KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM.** **EXHIBIT (A1) TRUE COPY OF THE NOTIFICATION DATED 31.12.2019** - **EXHIBIT (A2) TRUE COPY OF THE POST GRADUATION DEGREE CERTIFICATE IN COMMUNICATION AND JOURNALISM WITH REGISTER NO.COJ010509/2003 ISSUED FROM KERALA** **EXHIBIT (A3) TRUE COPY OF THE MARK LIST WITH REGISTER NO.COJ 010509** - **EXHIBIT (A4) TRUE COPY OF THE CERTIFICATE FOR NATIONAL EDUCATION TEST ELIGIBILITY FOR LECTURERSHIP WITH ROLL NO.E 322105.** **EXHIBIT (A5) TRUE COPY OF THE TRUE COPY OF THE M.PHIL DEGREE CERTIFICATE WITH REGISTER NO.111 DATED 18.03.2009** **EXHIBIT (A6) TRUE COPY OF THE CIRCULAR NO.03/2011 DATED 08.01.2011** **EXHIBIT (A6(A) TRUE TRANSLATED VERSION OF ANNEXURE-A6 EXHIBIT (A7) TRUE COPY OF THE ORDER OF THE KERALA UNIVERSITY NO.AC.C4402/2011 DATED 29.06.2011 EXHIBIT (A8) TRUE COPY OF THE REPRESENTATION EXHIBIT (A9) TRUE COPY OF THE ORDER NO.GR II B(1)33515/2009/GW DATED 30.09.2013** - **EXHIBIT (A9A) TRUE TRANSLATED VERSION OF ANNEXURE-A9** **EXHIBIT (A10) TRUE COPY OF THE ORDER NO.AC.C/041288/2013 DATED 29.11.2013** **EXHIBIT (A11) TRUE COPY OF THE ELIGIBILITY CERTIFICATE DATED 13.12.2013** **EXHIBIT (A12) TRUE COPY OF THE REPRESENTATION DATED 14.12.2013** **OP(KAT).No.545 OF 2019** **11** **EXHIBIT (A13) TRUE COPY OF THE ORDER DATED 7.1.2014 EXHIBIT (A13A) TRUE TRANSLATED VERSION OF ANNEXUREA13 EXHIBIT (A14) TRUE COPY OF THE RANKES LIST NO.257/12/SSVI EXHIBIT (A15) TRUE COPY OF THE RANKED LIST NO.252/11/SSVI EXHIBIT (A16) TRUE COPY OF THE RANKED LIST NO.212/11/SSVI EXHIBIT (A17) TRUE COPY OF THE RANKED LIST NO.300/13/SSIV EXT.P2 CERTIFIED COPY OF THE REPLY STATEMENT DATED 24.04.2014 FILED BY THE 3RD RESPONDENT (2ND RESPONDENT IN THE O.A.). EXT.P3 CERTIFIED COPY OF THE ORDER DATED 5.4.2019 IN R.A.NO.28/2016 IN O.A.NO.174/2014 EXT.P3(MA1) TRUE COPY OF THE STATEMENT DATED 21.04.2014 FILED BY K.P.S.C.BEFORE THE STATE INFORMATION COMMISSION EXT.P4 (OA) CERTIFIED COPY OF THE ORDER OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL DATED 4.4.2016 IN O.A.NO.174/2014 EXT.P5(OA) CERTIFIED COPY OF THE R.A.NO.28/2016 IN O.A.NO.174/2014 DATED 13.08.2016 EXT.P5(RA1) TRUE COPY OF THE ADVICE MEMO NO.RID(3)31831/11/GW DATED 22/08/2015 OF THE KERALA PUBLIC SERVICE COMMISSION EXT.P5(RA2) TRUE COPY OF THE ORDER NO.B4/26659/2014/COLL.EDN.DATED 25/09/2015 EXT.P5(RA3) TRUE COPY OF THE NOTIFICATION ISSUED BY THE UNIVERSITY OF KERALA REGARDING ADMISSION TO M PHIL.DEGREE COURSE FOR THE YEAR 2016-2017 EXT.P5(RA4) CERTIFIED COPY OF THE ORDER DATED 4.4.2016 IN O.A.NO.174/2014 OF THIS HON'BLE TRIBUNAL** **OP(KAT).No.545 OF 2019** **12** **EXT.P5(A) APPLICATION TO GRANT LEAVE EXT.P5(B) APPLICATION FOR STAY EXT.6(0A) TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER (1ST RESPONDENT IN THE R.A.)AGAINST R.A.NO.28/2016 IN O.A.NO.174/2014 DATED 8.6.2018** - **EXT.P6(R1(A) TRUE COPY OF THE ORDER NO.AC.A.A.IV/2/53816/2002 DATED 17.7.03 ISSUED BY UNIVERSITY OF KERALA** **EXT.P7(OA) CERTIFIED COPY OF THE REJOINDER FILED B THE FIRST RESPONDENT (APPLICANT IN THE R.A)DATED 25.06.2018** **EXT.P7(RA4) TRUE COPY OF THE PSC NOTIFICATION DATED 31.12.2010** **EXT.P8(OA) CERTIFIED COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN R.A.NO.28/2016 IN O.A.NO.174/2014 DATED 29.01.2019** - **EX.TP9(OA) CERTIFIED COPY OF THE OBJECTION FILED BY THE PETITIONER(1ST RESPONDENT IN THE R.A.)DATED 26.02.2019** - **EXT.P9(R1B) TRUE COPY OF THE CIRCULAR NO.03/2-011 DATED 18.01.2011 ISSUED BY THE P.S.C.** - **EXT.P1O(OA) CERTIFIED COPY OF THE ORDER DATED 5.4.2019 IN R.A.NO.28/2016 IN O.A.NO.174/2014.** - **EXHIBIT P11 TRUE COPY OF THE PROSPECTUS OF THE YEAR 2012-2013 FOR M.PHIL PROGRAMME IN FUTURE STUDIES PUBLISHED BY THE UNIVERSITY OF KERALA.** - **RESPONDENT'S EXHIBITS:** **EXHIBIT R1 A TRUE COPY OF THE ORDER DATED 21/08/2019 IN O.A.1343/2016 OF THE HON'BLE TRIBUNAL.** //TRUE COPY// P.A TO JUDGE ab