Kerala Public Service Commission v. Anjitha C.P. and The Ministry of Social Justice and Empowerment, Department of Disability Affairs (Writ Appeal No.1735 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA,** **1944** **WA NO. 1735 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 22864/2016 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS/RESPONDENT NOS.1 TO 3:** - **1 KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM-695004, REPRESENTED BY SECRETARY.** - **2 THE SECREARY KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM-695004.** - **3 THE CHAIRMAN, KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM-695004.** **BY ADV P.C.SASIDHARAN** ## **RESPONDENTS/PETITIONER & 4TH RESPONDENT:** - **1 ANJITHA C.P., AGED 21, D/O D PRABHAKARAN,T.C.5/2282(1), KAUDIAR P.O,THIRUVANANTHAPURAM-695003.** - **2 MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT DEPARTMENT OF DISABILITY AFFAIRS, ROOM NO. 740, 'A" WING, SHASTRI BHAVAN, DR.RAJENDRA PRASAD ROAD, NEW DELHI-110001 REPRESENTED BY SECRETARY.** **BY ADVS. S.NIKHIL SANKAR ASSISTANT SOLICITOR GENERAL SMT.VANDANA P., CGC** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1735 of 2022 -: 2 :- **P.B.SURESH KUMAR & C.S.SUDHA, JJ. ----------------------------------------------Writ Appeal No.1735 of 2022 ----------------------------------------------Dated this the 12[th] day of December, 2022.** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This appeal is directed against the interim orders dated 06.7.2022, 27.07.2022, 29.09.2022, 11.10.2022, and 03.11.2022 in W.P.(C) No. 22864 of 2016. The appellants are respondents 1 to 3 in the writ petition, and the first respondent is the petitioner in the writ petition. Parties are referred to in this judgment for convenience, as they appear in the writ petition. 2. The Kerala Public Service Commission (the Commission) conducted a written examination on 24.05.2016 for selection for appointment to the post of Assistant in the Universities in Kerala at 2223 examination centres. The petitioner is one among the candidates who undertook the said written examination. As the petitioner was a visually challenged person, she requested the Commission to provide W.A.No.1735 of 2022 -: 3 :- her a scribe for undertaking the examination, and on the said request, a scribe was provided to the petitioner. With the aid and assistance of the scribe, the petitioner undertook the examination. On 26.05.2016, the petitioner lodged a complaint to the Commission contending that the scribe provided to her was incompetent and that she could not therefore perform to the best of her ability in the written examination. The prayer in the complaint was to include the petitioner also in the ranked list on account of the said reason. The writ petition was filed thereafter, seeking directions to the Commission to consider the complaint lodged by her and also to include her provisionally in the shortlist prepared for the interview. 3. On 06.07.2022, the learned Single Judge passed the following interim order: “The public service commission will make available the details regarding the scribe assigned to the petitioner in this case particularly as to whether she was well versed in english. The name and address of the said scribe shall also made available to this court through an appropriate pleading.” Since the Commission has, by the time, filed their counter affidavit in the matter, an additional counter affidavit was filed by them furnishing the particulars sought for by the Court. As the particulars of the scribes provided to the candidates are W.A.No.1735 of 2022 -: 4 :- kept confidentially by the Commission, the same were furnished to the court in a sealed cover. Later, when the matter came up for hearing on 27.07.2022, the learned Single Judge passed the following order: “I have examined the additional counter affidavit filed on behalf of the Public Service Commission (PSC) however, I am of the view that before this Court to take a final decision, the response of the invigilator/Examiner, who was present with the petitioner must be placed on record. I, therefore direct the PSC to facilitate the afore by the next posting date through an affidavit to be sworn to by the said Invigilator/Examiner.” The Commission complied with the said interim order also. Later, when the matter came up for hearing on 29.09.2022, the learned Single Judge passed the following order: “The PSC will produce the results of the petitioner pursuant to the interview conducted on 07-07-2016 and also the present address, designation and employment details of Smt.Reena Joseph in a sealed cover by the next posting date.” The Commission complied with the above order also. The matter came up for hearing thereafter on 11.10.2022, on which day, the learned Single Judge directed the Commission to suggest a suitable person to interact with the scribe and to assess her competence, particularly in the language English. The relevant portion of the said order reads thus: “I, therefore, direct the Public Service Commission (PSC) to W.A.No.1735 of 2022 -: 5 :- suggest a suitable person to interact with the scribe and to assess her competence, particularly in the language of English, by the next posting date. ” It is stated by the Commission that pursuant to the said direction, an Under Secretary of the Commission holding a doctoral degree interacted with the scribe and submitted a report to the Commission stating that the scribe was well versed in English and she is competent and qualified to be a scribe. 4. Thereafter, on 03.11.2022, when the matter was taken up, the learned Single Judge took the view that the scribe will have to be assessed as to her competency by an independent authority unconnected with the Commission. The said order reads thus: “Read orders dated 11.10.2022 and 17.10.2022. 2. Sri.Nikhil Sankar – learned counsel for the petitioner submitted that he and his client have gone through the report of Sri.K.Ashokan – Under Secretary of Kerala Public Service Commission (‘PSC’, for short); and that same cannot be accepted, since it is settled by an officer of the PSC itself. 3. As is evident from the order of this Court dated 11.10.2022, I had only ordered the PSC to suggest a suitable person to interact with the scribe client and to assess her competence. However, the PSC appears to have understood this to mean that such an interaction should be done and a report filed; consequent to which the aforementioned Sri.K.Ashokan is stated to have done so. 4. However, a question of bias is certainly possible, because Sri.K.Ashokan is an Under Secretary of the PSC, said W.A.No.1735 of 2022 -: 6 :- entity being a party to this litigation. 5. I am, therefore, of the firm view that scribe must be assessed by an independent Authority. I, consequently, adjourn this matter to be called on 9.11.2022; within which time, both sides will make suggestions as to the Authority who can interact with his client, so as to assist this Court in making a final judgment.” As noted, it is aggrieved by the aforesaid interim orders that the Commission and its officers, who are respondents 1 to 3 in the writ petition, have come up with this appeal. 5. The learned Standing Counsel for the Commission vehemently and persuasively submitted that the Commission being a constitutional body entrusted with functions and responsibilities of conducting examinations and preparing ranked lists and selecting candidates to various posts, such functions cannot be delegated to an outside agency. The learned Standing Counsel has relied on the various decisions of the Apex Court and this court, including the decision of the Apex Court in **Buddhi Nath Chaudhary v. Abahi Kumar,** (2001) 3 SCC 328 and the decision of this court in **Kerala Public Service Commission v. Ashokan,** 2003 (2) KLT 177, in support of the said proposition. According to the learned Standing Counsel, an outside agency cannot assess the competency of a scribe appointed under the W.A.No.1735 of 2022 -: 7 :- direction of the Commission. 6. In the course of the arguments, the learned counsel for the petitioner submitted that on 09.11.2022, when the matter came up for hearing, the learned Single Judge recalled the order dated 03.11.2022 and decided to proceed with the writ petition with the available materials. 7. In the light of the said subsequent development, the short question that falls for consideration is as to whether the interim orders dated 06.07.2022, 27.07.2022, 29.09.2022 and 11.10.2022 call for any interference by this Court, in exercise of the power under Section 5 of the Kerala High Court Act. 8. The question whether an appeal would lie to a Division Bench under Section 5 of the Kerala High Court Act against an interlocutory order in a writ petition, while the writ petition is pending and if so, what are the circumstances under which or the types of cases in which such an appeal would lie, has been examined by the Larger Bench of this Court in **K.S.Das v. State of Kerala** , 1992 (2) KLT 358. The majority opinion in the said case reads thus : “Conclusion: (1) The word ‘order’ in S.5(i) of the Kerala High Court Act, 1958 includes, apart from other orders, orders passed by the High W.A.No.1735 of 2022 -: 8 :- Court in Miscellaneous Petitions filed in the Writ Petitions provided the orders are to be in force pending the Writ Petition. An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause Substantial prejudice to the parties. The nature of the ‘order’ appealable belongs to the category of ‘intermediate orders’ referred to by the Supreme Court in **Madhu Limaye** ’s case, AIR 1978 SC47. The word ‘order’ is not confined to ‘final order’ which disposes of the Writ Petition. The ‘orders’ should not. however, be ad interim orders in force pending the Miscellaneous Petition or orders merely of a procedural nature. (2) But this does not mean that the Division Bench hearing the appeal against such ‘orders’ will have to admit the appeal or have to modify the impugned order or set it aside the same in every case. There is difference between the question whether an appeal lies to a Division Bench and as to the scope of interference. Normally, discretionary orders are not interfered with unless the impugned orders are without jurisdiction, contrary to law, or are perverse, and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. The idea is to provide an internal remedy in such cases without compelling the parties to go all the way to the Supreme Court under Art. 136 of the Constitution of India or increase the burden of that court unnecessarily, (3) It will, however, be incumbent upon the appellant to serve the counsel who has appeared before the Single Judge for the opposite party (unless of course the counsel’s authority has been revoked or he is dead) and when such appeals against orders come up in appeal for admission before the Division Bench, it will be open to the Bench to treat such service as mentioned above as sufficient service on the parties (unless the court, in the circumstances of the case, thinks otherwise) and to dispose of the appeal either at the stage of admission or soon thereafter, after considering the facts of the case or subsequent events. This would generally obviate admission of the Writ Appeals, issue of notice and the passing of interim orders pending Writ Appeals.” As explicit from the extracted opinion, the view that was upheld in the said case was that even though an appeal could W.A.No.1735 of 2022 -: 9 :- be filed against an interlocutory order passed in a writ petition, in order to be qualified for challenge in an appeal, the order shall be either substantially affecting or touching upon the substantial rights or liabilities of the parties or which are matters of moment and cause substantial prejudice to the parties. According to the Larger Bench, the nature of the order appealable belongs to the category of intermediate orders referred to by the Apex Court in **Madhu Limaye v. State of Maharashtra** , (1977) 4 SCC 551. It was, however, clarified by the Larger Bench in the said case that such orders should not, however, be _ad_ interim orders or orders merely of a procedural nature. Reverting to the facts, the interim orders dated 6.7.2022, 27.7.2022, 29.9.2022 and 11.10.2022 which are impugned in the appeal are orders merely procedural in nature and the same cannot be impugned in an appeal under Section 5, in the light of the decision of the Larger Bench of this court in **K.S.Das,** and in that view of the matter, the writ appeal is not maintainable. That apart, as noted, the Commission has complied with the directions contained in all the interim orders and they cannot, therefore, be said to be aggrieved by the said W.A.No.1735 of 2022 ## -: 10 :- orders to justify an approach to this court by way of appeal under Section 5 of the Kerala High Court Act. The writ appeal, in the circumstances, is without merits and the same is accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 08.12.2022