Febzy.K v. Kerala Public Service Commission and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 WP(C).No. 27856 of 2010(F) -------------------------------- PETITIONER: -------------- FEBZY.K, D/O.K.FAIZAL,AGED 27 YEARS, SAUMYAM,ANDONA,PARAPPANPOYIL PO, THAMARASSERY, KOZHIKODE DISTRICT. BY ADVs. SRI.N.SUGATHAN SMT.VARSHA BHASKAR RESPONDENTS: ------------------ 1. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE DISTRICT OFFICER, OFFICE OF THE DISTRICT OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, KOZHIKODE. 3. THE DISTRICT OFFICER, OFFICE OF THE DISTRICT OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. BY ADV. SRI.V.RAJENDRAN, SC, KPSC FOR R1-R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.27856/2010 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF COMMUNICATION ISSUED BY R3 DTD.26.7.07. EXT. P2 : COPY OF REPRESENTATION PREFERRED BY PETITIONER DTD. 31.7.07. EXT. P3 : COPY OF COMMUNICATION ISSUED BY R2 DTD. 5.11.09. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp ## **T.R. RAMACHANDRAN NAIR, J.** **--------------------------------------W.P.(C) No.27856 OF 2010 --------------------------------------Dated this the 19[th] day of July, 2011.** ## **J U D G M E N T** The petitioner herein is aggrieved by the communications Exts.P1 and P3 whereby the petitioner's application for appointment as High School Assistant (English) in Kozhikode District stands rejected. 2. The notification is dated 13.08.2006. The selection and appointment is on district wise basis and the petitioner submitted the application for appointment in Kozhikode District. By Ext.P1 communication from the District Office, Thiruvananthapuram, it was informed to her that the application stands rejected. The petitioner had not opted Thiruvananthapuram District. Therefore, the petitioner approached the Chairman of the Public Service Commission by filing a representation challenging the rejection. It is the averment of the petitioner that the Chairman of the Commission on consideration of the representation issued necessary directions to issue Hall Ticket to the petitioner by the **W.P.(C) No.27856/2010** **2** 2[nd] respondent and it is also the case of the petitioner that the application was retransmitted to the office of the 2[nd] respondent at Kozhikode. Accordingly, the petitioner appeared for the written test held on 04.08.2007. It appears that the petitioner went abroad to join her husband and later after returning to India, she came to know about Ext.P3 communication issued by the District Office of the Commission at Kozhikode, rejecting her application. 3. Heard the learned counsel for the petitioner and the learned counsel appearing for the Public Service Commission. It is the case of the petitioner that the petitioner being a native of Kozhikode District applied for the post in Kozhikode itself. The application was complete by itself. Herein she was allowed by the Chairman of the Commission to write the examination and therefore, it is not proper to reject the application at the final stage. In the meanwhile, ranked list has also been published and the direction sought is to include the petitioner in the ranked list. 4. The 1[st] respondent has filed a counter affidavit. It is pointed out that the ranked list came into force on 03.02.2011 **W.P.(C) No.27856/2010** **3** and 76 candidates have been advised from the list. The petitioner was allowed to participate in the interview in terms of the interim order passed by this Court. It is pointed out that even though the petitioner was allowed provisionally to participate in the test based on the representation given to the Chairman, later the Commission considered the matter and decided to reject the application which was informed to the petitioner. It is mainly pointed out that the candidates are expected to submit the application to the proper office. 5. Learned counsel appearing for the Commission relied upon various decisions of this Court namely, in Writ Appeal No.2506/2007 and in W.P.(C) No.13380/2010 whereas the learned counsel for the petitioner relied upon the judgment of a Division Bench in Writ Appeal No.2116/2010 and in W.P.(C) No. 32876/2008. 6. Evidently, the petitioner's application was complete in all respects as the petitioner applied for the post in Kozhikode District. But, it was forwarded to the wrong address of the office of the Commission at Thiruvananthapuram. What is pointed out **W.P.(C) No.27856/2010** **4** by Sri.V.Rajendran,Counsel for PSC is that the application did not reach the correct office. But, evidently, going by Ext.P3 communication, the petitioner was allowed to write the examination in Kozhikode District as permitted by the Chairman even though it was only a provisional basis. 7. This Court has considered the issue concerning rejection of application in different contexts in various judgments. In W.A.No.2506/2007, the facts show that the applicant intended to submit the application for a post in Malappuram District but the application was sent to the District Office, Kannur and he appeared for the examination in Kannur District. It is in that context, the Division Bench upheld the rejection of the application. Evidently, herein the petitioner's application was for a post in Kozhikode District and she appeared for the test therein itself. 8. W.P.(C) No.13380/2010 was in respect of an application for a post in Wayanad District and it was wrongly delivered in Malappuram District. Therein the petitioner sought for a direction to permit him to participate in the test which was not allowed by **W.P.(C) No.27856/2010** **5** this Court. 9. Learned Standing Counsel for the Commission also relied upon a decision of this Court in _**Neena** vs._ _**Public Service Commission**_ **(2010 (1) KLT 258)** . It was a case where a mistake was crept in mentioning the category code by the applicant in the application form. This Court did not accept the case of the petitioner therein and dismissed the writ petition which was confirmed by the Division Bench. 10. In Writ Appeal No.2116/2010 relied upon by the learned counsel for the petitioner, the request of the applicant was accepted by the Public Service Commission and then she was allowed to participate in the written test. The mistake was in the code number. Thereafter the application was rejected. This Court in the said judgment held as follows: “We do not think there can be any dispute on the legal position canvassed by the PSC based on several court decisions that they are entitled to reject an application, if category code given in the application is wrong. However, this does not mean that the PSC on noticing the mistake cannot allow correction of the application submitted by an applicant. Obviously, in this case, the PSC based on **W.P.(C) No.27856/2010** **6** the appellant's request, carried out correction on category code, treated her application thereafter as one filed under general category and issued hall ticket permitting the appellant to write the examination. The appellant participated in the written examination only after the PSC corrected the category code in the application and issued hall ticket to the appellant. Even though the learned counsel for the PSC submitted that application was not corrected, we cannot accept it because the correspondence produced in Court including PSC letter go to show that the appellant requested for correction and without correction of category code, the PSC would not have issued hall ticket.....”. 11. Of course, in the strict terms of the notification published by the Commission is concerned, the applicant should have forwarded the application to the District Office, Kozhikode itself. It is true that the application was addressed to District Office, Thiruvananthapuram wherein it was received. But, the fact that the application was received in the wrong address was not informed to the petitioner immediately for presenting it in the proper office. 12. Going by the pleadings in the writ petition, it can be seen that the communication Ext.P1 is dated 26.07.2007 and the **W.P.(C) No.27856/2010** **7** date of the application was 05.11.2006. Therefore, it was not a case where the petitioner had knowledge about the same at that point of time. Still further, the representation by the petitioner was acted upon and the petitioner was allowed to write the examination of course on a provisional basis by the Chairman of the Commission. Therefore, the facts of the case, as rightly pointed out by the learned counsel for the petitioner, and going by the decisions relied upon by the Commission are distinguishable. Evidently, the petitioner has written the examination in Kozhikode. Therefore, the candidature of the petitioner could be treated as valid in the light of the appearance in the examination especially in the light of the judgment in Writ Appeal No.2116/2010. Already 76 candidates have been advised from the ranked list. Therefore, without affecting the rights of the candidates already advised, the petitioner can be included in the ranked list at the right place. Hence, Exts.P1 and P3 are quashed. There will be a direction to the Public Service Commission to include the petitioner at the correct place in the ranked list based on the **W.P.(C) No.27856/2010** **8** marks obtained and the same will be without prejudice to the rights of the candidates who have already been advised from the ranked list. Appropriate steps will be taken within a period of one month from the date of receipt of a copy of this judgment. This writ petition is allowed as above. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp