Gayathry C.D. v. Kerala Public Service Commission and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933** **WP(C).No. 35017 of 2010(B)** **----------------------------------------** ## **PETITIONER(S):** **---------------------** **GAYATHRY C.D., W/O.ABHILASH, AGED 30, MELATHIL VEEDU, MANALLOOR, NEYYATTINKARA P.O.** **BY ADV. SRI.S.SREEKUMAR, SRI.P.MARTIN JOSE, SRI.P.PRIJITH, SMT.HANI P.NAIR.** **RESPONDENT(S):** **-------------------------** ## **1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, TRIVANDRUM. PIN - 695 001.** ## **2. THE DIRECTOR,** **THE DIRECTORATE OF INSURANCE MEDICAL SERVICES, TRIVANDRUM. 14, PIN - 695 014.** **3. THE DIRECTOR, KERALA COLLEGIATE EDUCATION, TRIVANDRUM. PIN - 695 001.** **R1 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC. R2 & R3 BY GOVT. PLEADER MR.T.T. MUHAMOOD.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/04/2011, THE COURT ON 23/05/2011 DELIVERED THE FOLLOWING:** **rs** ## **WP(C).No. 35017 of 2010(B)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ADMISSION TICKET WITH REGISTRATION NO.S100077.** **EXT.P2: COPY OF THE LETTER DATED 09/11/2010 ISSUED TO THE PETITIONER FOR INTERVIEW.** **EXT.P3: COPY OF THE PROFORMA OF RECEIPT.** **EXT.P4: COPY OF THE CERTIFICATE DATED 19/11/2010 OF THE 3RD RESPONDENT.** **EXT.P5: COPY OF THE RANK CERTIFICATE DATED 18/11/2004 ISSUED BY THE UNIVERSITY OF KERALA.** **EXT.P6: COPY OF THE CERTIFICATE ISSUED BY AVINASHILINGAM INSTITUTE FOR HOME SCIENCE AND HIGHER EDUCATION FOR WOMEN COIMBATORE.** **EXT.P7: COPY OF THE ELIGIBILITY CERTIFICATE DATED 21/02/2005 ISSUED BY UNIVERSITY OF KERALA.** **EXT.P8: COPY OF THE CERTIFICATE DATED 11/03/2005.** **EXT.P9: COPY OF THE CERTIFICATE DATED 31/08/2009.** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.S. TO JUDGE** **rs** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~** ## **W.P.(C). No.35017/2010-B** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23[rd] day of May, 2011** ## **J U D G M E N T** The petitioner who is an applicant before the Public Service Commission to the post of Lecturer in Home Science (Food and Nutrition) has approached this Court seeking for a direction to the respondents to allow her to participate in the interview for the said post. 2. Pursuant to the interim order passed by this Court dated 23/11/2010, the petitioner participated in the interview. 3. The petitioner was initially advised by the Public Service Commission as Dietician Grade-II under the Directorate of Insurance Medical Services, Thiruvananthapuram and is presently working as such in E.S.I. Hospital, Peroorkada. 4. Pursuant to the notification inviting applications to the post of Lecturer in Home Science (Food and Nutrition), petitioner submitted an online application. The last date for receipt of the application was 30/01/2008. She participated in the written examination held on 05/11/2009 and was shortlisted based on the result of the examination as one among 8 W.P.(C). No.35017/2010 -:2:- candidates qualified for the interview. Ext.P2 is the memo inviting her to participate in the interview. 5. The controversy herein is only whether the petitioner has complied with the instructions issued to the candidates by producing the receipt from the Head of the Department wherein she is working, in the form prescribed viz., Ext.P3. As far as the said requirement is concerned, it is not in dispute that the receipt should be one obtained before the last date for receipt of the applications. 6. What is produced by the petitioner is Ext.P4, which is a certificate issued by the Director of Insurance Medical Services stating that they have no objection in allowing the petitioner to participate in the interview. The same is dated 19/11/2010. The apprehension expressed by the petitioner in the writ petition is that the same may not be accepted by the Public Service Commission. 7. To show that the petitioner is a meritorious candidate, she has produced certain certificates acquired by her at various levels, as Exts.P5 to P9. 8. The learned counsel for the petitioner Shri S.Sreekumar submitted that even though the petitioner has not produced the receipt as prescribed in the form in Ext.P3, the no-objection certificate granted as per W.P.(C). No.35017/2010 -:3:- Ext.P4 shows that the Department has no objection in acceptance of her application and therefore, the same will be sufficient. It is pointed out that there is no dispute regarding the qualification, merit or otherwise of the candidate as she has fulfilled all the essential qualifications for the post. What is provided as per Ext.P3 is a “Form of Receipt” which is only procedural in nature and, therefore, the non production of the same cannot result in rejection of her candidature. It is further pointed out that herein the principle of substantial compliance will enure to the benefit of the petitioner in the light of Ext.P4 no-objection certificate. 9. The Public Service Commission has filed an affidavit opposing the prayers of the petitioner. It is explained that as per Sub-rule 2(a) of Rule 2 of the Kerala Government Servants' Application For Posts (Private Employment and Government Service) Rules, 1958, a Government servant employed in a service under the Administrative control of the Government of Kerala applying for a post or for transfer to a post in another Office or Department of the Government of Kerala will have to submit his application through the Head of the Office in which he is working at the time of making the application. Reliance is placed on paragraph (20) of the general conditions of the notification to the effect that a receipt shall be produced by the candidates of such nature specified above, when it is called for by the W.P.(C). No.35017/2010 -:4:- Commission. A model has also been published in the gazette. It is pointed out that instead of producing the receipt, the petitioner has produced NOC dated 19/11/2010, which is not acceptable. The receipt as stipulated in paragraph (20) has to be produced. Accordingly, 7 days time was allowed for production of the same and, she was provisionally admitted for the interview. It is further pointed out that the Circular issued by the Commission specifies that candidates who are unable to produce the receipts issued by Head Office after a lapse of time, will be given a chance to submit a certificate from Head of Office that he or she had applied for receipts on or before the last date of the application. It is further emphasised that a candidate should apply for a receipt of application before the Head of the Department prior to the last date of application, which is mandatory. A receipt will show the formal prior sanction given by the department for submitting the application. This is not satisfied by the petitioner and therefore, she is not eligible to be included in the ranked list. 10. The learned counsel for the petitioner relied upon various Judgments in support of his arguments, viz. **Johnson v. Kerala Public Service Commission [1977 KLT 776], Kuriakose v. State of Kerala and Others [1984 KLT 925] Manoj Kumar v. Kerala Public Service** W.P.(C). No.35017/2010 -:5:- ## **Commission [1999 KLT 534]** and **Sajeev v. Kerala Public Service Commission [2008 (4) KLT 691].** 11. The learned Standing Counsel for the Public Service Commission relied upon an unreported Judgment of a learned Single Judge of this Court in W.P.(C).No.4173/2007 wherein the effect of the very same rule was considered. 12. First, I will consider the principles stated in the decisions relied upon by the learned counsel for the petitioner.- In **Johnson v. Kerala Public Service Commission [1977 KLT 776]** , the cancellation of advice under Rule 3(c) of the Kerala State and Subordinate Services Rules was the subject matter of challenge. It was a case where the petitioner, who was appointed, at the time of submitting the application did not disclose certain facts in the application form relating to his current employment. The question raised was whether the same will be sufficient to invoke Rule 3(c) of the General Rules. The following findings in paragraph (4) were relied upon by the learned counsel for the petitioner:- “ ....................If the scope of R.3(c) is to enable cancellation of advice being made when it is subsequently found that the original advice was made under some mistake it appears to me that the mistake must be of such a nature as could have caused W.P.(C). No.35017/2010 -:6:- the advice to be made. There may be cases where candidates would not have obtained qualifying marks in their examinations but they might have represented otherwise in their applications, cases where they misrepresent that they are in possession of qualifications required for eligibility but they would not be really possessing them and cases where they may represent that they belong to particular caste or community by virtue of which they may be entitled to get the appointment but they do not belong to such caste or community There may be similar other cases where the description would be of material relevance in determining eligibility for appointment or suitability for selection. In such cases it could very well be said that but for the description relied on or the information acted upon by the the Public Service Commission which is found subsequently to be mistaken the advice would not have been made. But there may be mistakes which may not be material in the decision as to making the advice. A candidate may assume that his father's name is not good enough for presentation in the application and he may improve upon it. He may furnish similar such other information not with a view to persuade the ## W.P.(C). No.35017/2010 -:7:- Public Service Commission to act upon it so as thereby to advise for appointment. I do not think it could be said that in those cases the mistakes, however serious or slight it be, could be brought within R.3(c), for, that rule mentions "if it is subsequently found that such advice was made under some mistake." This expression necessarily conveys the idea very emphatically that it should be subsequently found that in making the advice the Commission acted under some mistake. Any mistake not relevant in the causation of advice by the Commission may not fall within the Rule.” 13. Actually, the circumstances herein are not identical to the issue considered by this Court in the above decision. We are not concerned with a case where anything is lacking in the particulars submitted by the applicant in the application. In paragraph (5) of the Judgment it has been explained that this Court was concerned only with the power to take action under Rule 3(c). 14. In **Kuriakose v. State of Kerala and Others [1984 KLT 925]** , the non production of certain original documents at the time of interview, in spite of the intimation in that regard, was the subject matter of dispute. The unsuccessful candidate, challenged the permission given by the Employer- W.P.(C). No.35017/2010 **==> picture [40 x 9] intentionally omitted <==** Institution to an appointed candidate to produce the originals later even though it was delayed. It is in that context the issue was examined. Paragraph(10) of the Judgment will show that the successful candidate therein was directed to produce the originals before the date of joining duty, which was complied with. It was also held that there was no irregularity in the matter. In fact, in paragraph (11), this Court observed as follows:- “The question has to be viewed in the larger perspective of a citizen's fundamental right to be considered for appointment under the State.” It was further held as follows:- “It may be that in some cases, an authority may, in the notification inviting application, provide for conditions of a substantial and grave nature with direct and intimate nexus to the process of selection. A default therein may be viewed seriously. Or it may be. that the condition is one which need not necessarily be viewed seriously. If the digression is in respect of a non-consequential or unimportant stipulation, deprivation of a job opportunity to a person who is otherwise fully qualified and even possessing superior merit for being appointed to the post, will amount to an arbitrary or ## W.P.(C). No.35017/2010 ## -:9:- unreasonable action, inconsistent with Art.14 and 16 of the Constitution. If the selecting authority like the 2nd respondent did not feel it necessary to give such crucial significance to the stipulation contained in Ext. P2 in regard to the production of the original records at the time of the interview, the view is entitled to be upheld, as being eminently reasonable and just.” The learned counsel for the petitioner relied upon these observations to contend that substantial compliance will be sufficient. 15. **Manoj Kumar v. Kerala Public Service Commission [1999 KLT 534]** is a case where the method adopted by the Public Service Commission in allowing the candidates to cure minor defects was found to be not illegal. ## 16. **Sajeev v. Kerala Public Service Commission [2008 (4) KLT** **691]** is a case where after the ranked list was published and the successful candidate was appointed, there was a modification in the ranked list in favour of the contesting respondent. The question raised was whether the action of the Commission in granting more time to the said candidate to participate in the interview by allowing him an opportunity to produce required certificates, was justified or not. This Court held, on the facts of the case that, the facility given by the Commission to cure the defect has to W.P.(C). No.35017/2010 **==> picture [48 x 9] intentionally omitted <==** be held as illegal. The examination of the legal issue was under Rule 3(c) of the K.S & S.S.R. 17. In fact, none of the above decisions are really of any assistance to decide the issue raised in this case. This is case where the petitioner was obliged to obtain and produce a receipt in terms of Sub-rule 2(a) of Rule 2 read with Rule 2(2A) of the Kerala Government Servants' Application For Posts (Private Employment and Government Service) Rules, 1958. This requirement has been incorporated under the common instruction in paragraph 20 of the General Conditions of the notification also. The question is whether the same is mandatory in nature. Evidently, going by the facts of this case, the petitioner has not produced a receipt in the form prescribed as per Ext.P3. There is no certificate by the Department also that the petitioner had applied for receipt on or before the last date of application. What is produced is only a no-objection certificate for the participation in the interview. Hence, there is no document to show the receipt of prior permission. 18. The theory of substantial compliance strongly put forward by the learned counsel can have application only in cases where the statutory rule can be termed as directory. But if the Rule is held as mandatory, any non compliance will be fatal. W.P.(C). No.35017/2010 -:11:- 19. In W.P.(C). No.4173/2007, the very same question was considered by this Court. In paragraph (8), it was held as follows:- “There is no reason why the requirement to produce the receipt from the Head of Office along with the application, should not be treated as mandatory. At any rate, eve if the P.S.C gives time to any candidate to produce such a receipt or an NOC as the case may be, that would purely be the discretion of the Commission”. 20. In fact in paragraph (9), this Court made it further clear that the statutory prescription as such does not admit of any residuary power of discretion with the P.S.C to relax any requirement. It was finally observed that “in my view, Rule 2(2A) cannot be ignored even by the P.S.C.”. 21. Therefore, it is evident from the above findings that this Court was of the view that the above rule is mandatory in nature. 22. Therefore, the theory of substantial compliance cannot be of any help to the petitioner. Of course, the result will be drastic as far as the petitioner is concerned. 23. Shri S.Sreekumar, learned Senior Counsel for the petitioner also submitted that equitable considerations may be extended to the W.P.(C). No.35017/2010 **==> picture [48 x 9] intentionally omitted <==** petitioner so that her candidature could be treated as valid. It is further pointed out that herein online application alone was needed. 24. It is true that online application was the requirement, but that will not result in dispensing with the requirement, as the rule is in operation. Petitioner was required to obtain it in the form prescribed in Ext.P3, but was expected to produce it later as per the intimation of the Commission. Since the rule is already held as mandatory by this Court, equitable consideration cannot be extended. For all these reasons, the writ petition is dismissed. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ms