Dr. Honey S.R. Prasad, Dr. Jyothi V., and Dr. Anjana V. v. State of Kerala, Director, Ayurveda Medical Education Department, and Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 10TH DAY OF FEBRUARY 2014/21ST MAGHA, 1935** **OP(KAT).No. 50 of 2014 ()** **-------------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN OA 2462/2013 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 5.12.2013** ## **PETITIONER(S):** **--------------------------** **1. DR.HONEY S.R.PRASAD, SARADA VILASOM, MANNARASSALA P.O., HARIPAD, ALAPUZHA-690 550.** ## **2. DR. JYOTHI V.,** ## **NANDANAM, CHALA EAST, KANNUR-670 621.** ## **3. DR. ANJANA V.,** - **VENKALLIL HOUSE, ERAVATTOOR, PERAMBRA P.O., KOZHIKODE-673 525.** **BY ADVS.SRI.B.RAGUNATHAN SRI.G.GOPALAKRISHNA PILLAI SRI.M.SALIM SRI.R.SRINATH SRI.V.M.JACOB** ## **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DIRECTOR, AYURVEDA MEDICAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695 001.** **3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695 004.** **R1 & R2 BY SENIOR GOVERNMENT PLEADER, SRI.NOBLE MATHEW R3 BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 10-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** ## **OP(KAT).No. 50 of 2014 ()** **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-------------------------------------** **EXHIBIT P1TRUE COPY OF THE ORDER DATED 5-12-2013 IN O.A.NO. 2462 OF 2013 OF KAT, THIRUVANANTHAPURAM. EXHIBIT P2TRUE COPY OF OA NO. 2462 OF 2013 ALONG WITH ANNEXURES A1 TO A17(A). EXHIBIT P3TRUE COPY OF THE APPLICATION TO ACCEPT THE DOCUMENTS AND FOR DIRECTION DATED 2-12-2013 ALONG WITH ANNEXURES A18 TO A20 (A).** **RESPONDENT(S)' EXHIBITS - NIL ---------------------------------------** **//TRUE COPY//** **P.A TO JUDGE** **“CR”** # **THOTTATHIL B.RADHAKRISHNAN & A.MUHAMED MUSTAQUE, JJ.** ------------------------------------------------------------------ O.P.(KAT).No.50 of 2014 ------------------------------------------------------------------Dated this the 10[th] day of February, 2014 ## **J U D G M E N T** ## **Thottathil B.Radhakrishnan, J.** - 1.Heard learned counsel for the petitioners. - 2.Petitioners applied in response to notification by the Kerala Public Service Commission, for short, 'PSC', which had prescribed 16.5.2012 as the last date for submission of applications, for being considered to the post of lecturer in 'Rachana Sharir'. That time limit was extended by a general notification upto 6.6.2012. This means that any person, who had acquired the prescribed qualification before that date, could also apply. - 3.It is the admitted situation that the petitioners, who appeared **2** _O.P(KAT).No.50/14_ for the Post Graduate Degree examinations in May 2012 under the Karnataka University, were qualified only on 23.6.2012, the date on which the results of that examination were published. There is no dispute on this. - 4.PSC issued Addendum Notification No.GR II C (4) 30808/10/GW dated 26[th] December, 2012 in view of G.O.(Ms.) No.28/2012/P&ARD dated 20.6.2012. That addendum notification was issued in the light of the fact that the upper age limit of candidates for applying for the posts enumerated in that addendum notification stood enhanced by one year as per the aforesaid Government Order. The time limit for receipt of application for the pots enumerated in that addendum notification was modified to be from 31.12.2012 to 15.1.2013. That addendum notification also clearly stated that only the candidates who could not apply for the posts enlisted in that notification by reason of being over-aged as per the Extraordinary Gazette Notifications dated 16.4.2012, 24.4.2012, 30.4.2012, 15.6.2012 and 15.9.2012, shall apply for the posts as per that addendum notification and that the **3** _O.P(KAT).No.50/14_ applications received otherwise will be summarily rejected. All the other conditions of the aforesaid five notifications remained unchanged, even going by the express terms of the said addendum notification. Obviously therefore, the benefit of that addendum notification would accrue only as regards the candidates who were over-aged in terms of the original notifications referred to therein, and were qualified in terms of the last date fixed as per notifications referred to therein. The reason for that addendum notification was to bring in the candidates who were at the point of time of the original notification over-aged but could be given an opportunity to compete in the selection, because the Government had by that time made an upward revision of the date of retirement of Government servants. Hence, the addendum notification had only brought in to the field of choice of the candidates who were over-aged. That, in no manner, had diluted the requirement of those candidates who ought to have acquired the prescribed qualification on or before 6.6.2012, which was the first extended date, since that extension was a general one to all candidates. **4** _O.P(KAT).No.50/14_ - 5.Petitioners contended before the Tribunal that extension having been granted to the over-aged candidates, petitioners are entitled to yet another decision by PSC rescheduling the last date for submission of applications and making such rescheduling as one of general application, so that the date of acquisition of qualification would also get postponed, bringing within the basket of the field of choice, persons like the petitioners who got qualified later, in terms of the laws. The Tribunal noted that PSC not having acceded to such request of the petitioners, it was not a matter to be interfered with in judicial review, since no question of hostile discrimination, arbitrariness etc. was sustainably shown. - 6.Learned counsel for the petitioners argued that in terms of the decisions of the Apex Court in **Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal [(2010) 3 SCC 786], Kallakkurichi Taluk Retired Officials Association, Tamil Nadu v. State of Tamil Nadu [(2013) 2 SCC 772], J.Pandurangarao v. Andhra Pradesh Public** **5** _O.P(KAT).No.50/14_ **Service Commission [AIR 1963 SC 268]** and by a Division Bench of this Court in **Public Service Commission v. Viswanathan Nair [1979 KLT Short Notes 40 Case** **No.82]** , it can be seen that, on the facts of this case, there is an arbitrary classification dependent on irrelevant factors and hence, the impugned order of the Tribunal deserves to be visited in jurisdiction under Article 227 of the Constitution of India. He further argued that there was a specific plea before the Tribunal that the refusal of the PSC to grant extension of a general nature was actuated by mala fides as is raised in ground C of the original application filed before the Tribunal. - 7.We will first deal with the second among the arguments addressed on behalf of the petitioners. Ground C of the original application proceeds as if the original notification is only a formality and that there were only 10 candidates for the selection. Petitioners also say in that paragraph that though the notified vacancy is one, five more vacancies would be available within a period of one year. The professed plea of mala fides needs to be quoted in the light of the argument **6** _O.P(KAT).No.50/14_ ## advanced before us. It reads as follows: “In the said circumstance eliminating the applicants is a willful act in order to give undue advantage to candidates who are close relatives of persons at the helm of the Department. But for their undue influence and political exertion applications Annexures A8 to A10 would not have been rejected. Hence the proceedings to reject the applications are nothing but an outcome of malafide exercise of power in the sense that it is meant for extraneous and irrelevant consideration.” 8.It is trite law that a plea of mala fides can be examined only when the mala fide exercise of power is attributed to an institution, in the case of an institutional decision, or officer of the institution, by making specific allegations as to the elements of such mala fides. The petitioners' plea is only of something that is attempted to be shown as the intention of the authority which rejected the request. Such intention, being an element of the mind of the maker of the decision, the plea of mala fides has to be founded on more specific and clear pleadings which convey the identity of the officer on whom **7** _O.P(KAT).No.50/14_ mala fides is charged. When such an allegation is charged against a group endowed with collective duties, responsibilities and powers to decide on the relevant issue, that plea of charge as to mala fides ought to have the rigour to affect the individual and institutional credibility of that body enjoined to take such institutional decision. 9.Reverting to the facts, the plea raised ought to have reflected the identity of the so called 'close relatives of persons' which is shown to be projected as the basis of the mala fide exercise of the administrative power. Bereft of any such specific pleading in that regard, it will be futile for a Tribunal or Court to step in and adjudicate on such issues. We also particularly see that no officer charged with any such mala fides and personal bias as against the petitioners, or in favour of some other group of persons, had been impleaded by name, enabling that person to meet the allegation of such mala fides, rather than leaving that person to face the consequence of the adjudication and be condemned unheard. This requirement is mandatory in terms of the law as settled and declared by the Honourable Supreme **8** _O.P(KAT).No.50/14_ Court of India repeatedly. We, therefore, repel this contention. 10. **Maharashtra University of Health Sciences** (supra) was rendered noticing that there cannot be any classification among teachers on the basis whether they were working on a permanent basis or were temporary hands. **Kallakkurichi Taluk Retired Officials Association** (supra) was rendered deciding that there cannot be any functional dichotomy in applying the DA component to determine the pension and the total carry home pension of employees who had retired on different dates from Government service. **J.Pandurangarao** (supra) rendered relating to a fact situation which arose before the Advocates Act, 1961 came into force, dealt with the question whether a person who was practicing as an advocate under the Mysore High Court could aspire for being considered for recruitment into the Andhra Judicial Service. In that case, the restriction of the field of choice being confined to Advocates who have enrolled under the Andhra Pradesh High Court, it was held that such restriction amounted to hostile discrimination since there was no intelligible **9** _O.P(KAT).No.50/14_ differentia for the classification, that was made thereby. In **Viswanathan Nair** (supra), this Court laid down that the declaration of the result by the examining authority by making an official declaration is relevant and when such result is published in a newspaper, it ought to be taken that the official declaration has already been made. We may recall that the said judgment was delivered at a point of time when the PSC's rules and regulations did not specifically provide an obligation on it to fix the last date of application. May be, taking a cue from that precedent, PSC has put its relevant rule specifically saying that its notifications will contain the last date fixed for making applications in terms of each notification. Learned standing counsel for the PSC referred to **Rekha Chaturvedi** **v. University of Rajasthan [1993 Supp (3) SCC 168]** to say that by now, the law is well settled that the last date fixed for applications is to be a matter of certainty and decisive to decide the date which would be relevant for all purposes. We accept that submission and state that, that is the law. 11.Precedents cited on behalf of the petitioners do not really **10** _O.P(KAT).No.50/14_ show any legal principle which could be made the foundation to hold that the prescription of the cut off date by the PSC for the notification is arbitrary or a capricious exercise of power. PSC had granted one extension of a general nature. That applies to all the candidates. While it extended the last date of application for the candidates who were over-aged, the aim of PSC was only to bring in those persons who would have lost only by reason of the fixation of last date, qua the age limit but could still aspire, having regard to the policy decision of the Government extending the date of retirement of Government servants from service. Remember, as noted above, even that notification does not bring in any candidate into the field of choice unless that person had the prescribed qualifications on or before 6.6.2012. 12.In view of the above, the decision of the Tribunal that there is no illegality or arbitrariness established is only to be upheld. No complaint of mala fides is pleaded or proved in accordance with law. The findings of the Tribunal that the matter was entirely within the domain of PSC cannot be found fault with. **11** _O.P(KAT).No.50/14_ 13.For the aforesaid reasons, we do not find any ground to interfere with the impugned decision of the Tribunal in exercise of powers under Articles 226 and 227 of the Constitution of India. 14.Hence, this original petition fails. In the result, this original petition is dismissed in limine. Sd/- **(THOTTATHIL B.RADHAKRISHNAN, JUDGE)** Sd/- ## **(A.MUHAMED MUSTAQUE, JUDGE)** //TRUE COPY// P.A TO JUDGE DG