Biju N v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937 OP(KAT).No. 234 of 2014 (Z) ---------------------------- AGAINST THE ORDER IN OA 2349/2013 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 30-05-2014 PETITIONER(S)/APPLICANT: -----------------------BIJU N, THARAMEL HOUSE, ERAMALLOOR.P.O., CHERTHALA, ALAPPUZHA-688 537. BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI.S.VIBHEESHANAN SRI.SIDDHARTH KRISHNAN RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME(A)DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001. 2. THE STATE POLICE CHIEF POLICE HEAD QUARTERS, VAZHUTHAKKAD THIRUVANANTHAPURAM-695 035. 3. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, P.S.C.OFFICE, PATTOM THIRUVANANTHAPURAM-695 004. 4. GOPAKUMAR K.V. (HDR-4761) QUARTER MASTER HAVILDAR, KAP III BATTALION, ADOOR PATHANAMTHITTA DISTRICT, PIN-691 523. OP(KAT).No. 234 of 2014 (Z) : 2 : 5. SREEKUMAR V.M CIVIL POLICE OFFICER (T-3969) DISTRICT HEAD QUARTERS OF POLICE THIRUVANANTHAPURAM CITY, PIN-695 014 R/A KADAVILA VEEDU, VENGANOOR STREET, PALLICHAL P.O, THIRUVANANTHAPURAM-695 020. R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R5 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R5 BY ADV. SMT.N.SANTHA R5 BY ADV. SRI.K.A.BALAN R5 BY ADV. SRI.SAJU JOHN R5 BY ADV. SRI.V.VARGHESE R5 BY ADV. SRI.PETER JOSE CHRISTO R5 BY ADV. SRI.S.A.ANAND R5 BY ADV. SMT.L.AMMU PILLAI R4 BY ADV. SRI.SYAM J SAM R1,R 2 BY SENIOR GOVERNMENT PLEADER SRI C.S.MANILAL THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 234 of 2014 (Z) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1- TRUE COPY OF THE ORDER DATED 30.05.2014 IN O.A.NO.2349/13 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. P2- TRUE COPY OF THE O.A.NO.2349/2013. P3- TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN O.A.NO.2349/2013. P4- TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER AGAINST EXT.P3. P5- REPLY STATEMENT FILED BY THE 5TH RESPONDENT. RESPONDENT(S)' EXHIBITS ----------------------- NIL. /TRUE COPY/ P.S TO JUDGE **K.SURENDRA MOHAN & P.V ASHA, JJ. ----------------------------------------------------O.P(K.A.T) No.234 of 2014 ---------------------------------------------------Dated this the 5[th] day of January, 2016** ## **JUDGMENT** ## Surendra Mohan, J. The petitioner in O.A No.2349 of 2013 of the Kerala Administrative Tribunal has filed this Original Petition, challenging Ext.P1 order dismissing the Original Application. The petitioner had submitted an application for selection and appointment to the post of Sub Inspector of Police (Trainee), in Police (General Executive Branch). As per the notification issued by the 3[rd] respondent - Kerala Public Service Commission, there were 3 categories of applicants who were eligible to apply for selection. The first category, No.315/2007, was for direct recruitment from the open market. 80% of the posts were reserved for such recruitment. The second category, No.316/2007, was set apart for selection from among Graduate Ministerial staff of Police and Vigilance Department, Finger Print Experts, Finger Print Searchers of the Finger Print Bureau. The **O.P(K.A.T) No.234 of 2014** 2 third category, No.317/2007, was set apart for recruitment from among Graduate Police Constables, Head Constables and officers of the respective rank in the Police department. As per a note appended to the notification Annexure-A1 it was stipulated that, persons who are eligible to apply under the categories designated as 316/2007 and 317/07 were free to apply either under the open category or under the particular quota reserved for them. But, there was a prohibition against applying for both the categories. It has been further specified that, the candidates should specify the category to which they were submitting their applications, at the top of the application form and if no mention regarding the category is made, the application would be treated as though it was one submitted for recruitment under the open category, Category-I. 2. Though there was a prohibition against applying to more than one category referred to above, it was found after the written examination was conducted that, many candidates had submitted separate applications in more than one category. Consequently, many candidates had submitted applications under 2 categories, though the same was prohibited. In view of 3 **O.P(K.A.T) No.234 of 2014** the above, the 3[rd] respondent gave such of those candidates who had applied to more than one category, an opportunity to opt as to which of the 2 categories they would prefer to have their application considered. Accordingly, 45 persons expressed their options. They were considered only to the category of their choice and a rank list was prepared. The petitioner challenges the above procedure adopted by the 3[rd] respondent. 3. According to the petitioner, since Annexure-A1 notification specifically prohibited submission of applications by a candidate to more than one category, the applications of candidates who had applied to more than one category should have been summarily rejected. Having stipulated that a candidate was prohibited from applying for more than one category, it is contended that, it was not open to the 3[rd] respondent to have watered down the said requirement by permitting the candidates who had violated the terms of the notification to exercise an option. The procedure has caused prejudice to the petitioner and he has, as a consequence, been ranked lower down in the rank list of departmental candidates. Therefore, it was contended that the rank list required to be **O.P(K.A.T) No.234 of 2014** 4 interfered with. 4. On behalf of the 3[rd] respondent, it was contended that violation of the stipulation in Annexure-A1 notification was noticed only after the written test was conducted. Thereupon, option was given to such of those candidates who had applied to more than one category to indicate their option as to the category to which their application was to be considered. Thus, only one application was considered. The procedure was adopted only to rectify the situation that was created. It was not noticed that, some of the candidates had applied under more than one category, at the time of scrutiny of the applications. Therefore, as soon as the violation was detected, instead of rejecting both the applications, the Public Service Commission had decided to accept only one. The said procedure, that was intended to meet the ends of justice, cannot be found fault with, according to the 3[rd] respondent. It was also contended that, the affected parties not having been brought on the party array, the relief sought for by the petitioner could not be granted. 5. On a consideration of the rival contentions of the **O.P(K.A.T) No.234 of 2014** 5 parties, the Kerala Administrative Tribunal came to the conclusion that, there were no grounds to interfere with the list that was published by the 3[rd] respondent. The Tribunal went into the question that was raised, placing reliance on the precedents on the point and found that, there was no illegality in the procedure that was adopted by the Public Service Commission. It is the said order, that is under challenge in this Original Petition. 6. According to Dr. K.P.Satheesan, who appears for the petitioner, instructions contained in the notification issued by the 3[rd] respondent were meant to be strictly enforced. Any application that is found to be not in conformity with the stipulations contained in the notification was only to be rejected, summarily. Having indicated the rules of the selection in Annexure-A1 notification, it was not open to the 3[rd] respondent to water down the requirements, in the middle of the selection process. It is contended that, since the written test was already over, the candidates very well knew how well they had done in each examination. They were, therefore, in a better position to take a decision as to the category to which their selection was to **O.P(K.A.T) No.234 of 2014** 6 be confined. Such an advantage conferred on them in spite of the violation committed by them, according to the learned counsel for the petitioner, was unmerited. Therefore, it is contended that the selection requires to be interfered with. 7. Advocate P.C.Sasidharan appears for the 3[rd] respondent. It is pointed out by the learned Standing Counsel that the petitioner has been ranked as No.146 in the category meant for departmental staff. Only 10% of the seats are reserved for such candidates. 45 persons have already been appointed from the said category. Even according to the petitioner, only 45 candidates have been given the benefit of the option that was extended by the P.S.C. Even if the said candidates had been removed, the petitioner does not stand a chance of being selected. It is next contended that, the number of candidates who had been given the benefit of the option are definite and are identifiable. Any decision in favour of the petitioner in this case would adversely affect their interests. No such relief therefore could be granted to the petitioner, without the said persons on the party array. It is further contended that, the decision to extend an option to the candidates who had **O.P(K.A.T) No.234 of 2014** 7 applied to more than one category, was taken immediately after the written test was conducted and before the answer scripts were valued. The decision was a general decision, applicable to a large number of candidates. The said decision was taken with the object of providing a chance to the candidates to indicate their option so as to specify their category. Such a procedure has been found to be in order by this Court in **Manoj Kumar v. K.P.S.C** [1999 (2) KLT 534]. Therefore it is contended that the above petition is only to be dismissed. 8. Advocate S.P.Aravindakshan Pillay appears for the 5[th] respondent who had got himself impleaded before the K.A.T. He is a person who has been ranked as No.40 in Annexure-A4. He has been appointed and has been working as a Sub Inspector of Police. According to the learned counsel also, without the parties who have been selected and appointed being on the party array, no relief as sought for by the petitioner could be granted. While filing the O.A, the petitioner had made only the 4[th] respondent a party. He is a person who has been ranked as No.129 and who has not been selected. Therefore, he cannot be said to represent the persons who are likely to be adversely **O.P(K.A.T) No.234 of 2014** 8 affected. According to the learned counsel, the K.A.T has considered the matter in the proper perspective and no interference with the impugned order is called for. 9. Heard. It is true that, the note to Annexure-A1 notification prohibits the submission of applications to more than one category. In the present case, admittedly, separate and independent applications had been submitted by some candidates, to more than one category. The applicants had not indicated that they had applied to another category. Therefore, both applications submitted by such candidates were treated as valid. According to the Standing Counsel for the 3[rd] respondent it was only at the time when they appeared for the written test that, the anomaly was detected. Since no application had been rejected, a decision was taken to provide an opportunity to the candidates to indicate their preference regarding the category to which their application should be considered. Accordingly, they indicated their preference and their applications were considered only to the said category. The question is as to whether the above procedure adopted by the 3[rd] respondent could be categorized as a violation of Annexure-A1 notification 9 **O.P(K.A.T) No.234 of 2014** 9 rendering the entire selection process, invalid. 10. The learned Senior Counsel for the petitioner has placed reliance on the decision of this Court in **Public Service Commission v. Saroja Nambiyar** [ILR 1978 (2) Ker. 241]. In the said case, the selection involved was to the post of Assistant Surgeon in the Health Services Department. The notification required the candidates to attach copies of documents in proof of their qualification, along with their applications. A candidate who had not attached documents in proof of his qualification along with his application, approached this Court by filing a Writ Petition. The Single Bench allowed the Writ Petition. The decision was challenged in Writ Appeal. In the said case, since the application was not submitted in compliance with the stipulations contained in the notification issued by the P.S.C, the same was held to have been rightly rejected. It has also been held that, the P.S.C was within its authority to reject such defective applications. In sharp contrast to the fact situation in the above case, in the present case, though some of the candidates had submitted applications under more than one category, both the applications were in order and were not **O.P(K.A.T) No.234 of 2014** 10 rejected by the P.S.C. 11. The learned Senior Counsel for the petitioner has placed reliance on another Division Bench decision of this Court in **Rangaswamy v. Kerala Public Service Commission** [1982 KLT 574]. In the said case also, it has been held that the stipulations contained in the notification inviting applications should not be watered down to accept defective applications. It has further been held that it was not within the province of this Court’s jurisdiction to issue such direction that would have the effect of diluting the stipulations contained in a notification. The learned Senior Counsel has also placed reliance on a decision of the Apex Court in **Ashok v. Public Service Commission** [2001 (2) KLT 788 (SC)], to contend that, in the said case where a candidate had applied for selection and appointment with respect to more than one district, in spite of a prohibition against applying to more than one district, the restriction was held to be proper and that the application was rightly rejected. We notice from the facts of the said case that, in addition to the stipulation that the application should not be submitted to more than one district, there was a column in the application form where a **O.P(K.A.T) No.234 of 2014** 11 candidate was required to state by answering either as “yes” or as “no” whether he had applied for the post in any other district pursuant to the said notification. There was also a specific condition in the said notification that, an application of a candidate was liable to be summarily rejected, if he had applied to more than one district. 12. However, in the present case, there was no column in the application requiring the candidate to indicate whether he had submitted applications to more than one category. Answer to such a question would have made it easy for the 3[rd] respondent to identify the candidates who had applied to more than one category. The wrong answer to the said question would have disqualified the candidate for having supplied wrong information. Obviously for the above reason, the 3[rd] respondent was not in a position in the present case to identify the candidates who had submitted more than one application. When the anomaly was detected, the 3[rd] respondent could have rejected both the applications submitted by the candidates. However, instead of doing so, the 3[rd] respondent, only in the interests of justice, has provided such candidates an opportunity **O.P(K.A.T) No.234 of 2014** 12 to indicate the category to which they preferred their application to be considered. We notice that such an opportunity was given immediately after the written test was conducted, even before the answer scripts were valued. The facility was extended generally to all candidates who had submitted more than one application. Therefore, we do not find any infirmity in the said decision that was taken by the P.S.C. 13. The learned Standing Counsel for the P.S.C has placed reliance on the decision in **Manoj Kumar v. K.P.S.C** (supra). In the said case, the action of the P.S.C, in having given an opportunity to the candidates who had submitted defective applications to cure the defect, was attacked as nonest in the eye of law. A learned Single Judge of this Court considered the issue and held that, the P.S.C was within its rights to have waived the said condition, to provide a chance to correct the mistakes which were not very consequential. The said decision has been relied upon by the K.A.T in the impugned order. In the present case also, we are not satisfied that any prejudice has been caused to the petitioner by the procedure that was adopted. As rightly pointed out by the learned Standing Counsel of the P.S.C, the **O.P(K.A.T) No.234 of 2014** 13 petitioner is ranked as No.146. The chance of the petitioner being appointed, even if the persons who had been provided with the option were removed, is remote. We also take note of the fact that the persons who have been provided with such option have not been made parties to these proceedings. Therefore, for the said reason also, the petitioner is not entitled to the reliefs sought for. For the foregoing reasons, we find no grounds to interfere with the impugned order or grant any of the reliefs sought for. The Original Petition fails and is dismissed. Sd/- _**K.SURENDRA MOHAN Judge**_ Sd/- _**P.V.ASHA Judge**_ rtr/