Kerala Public Service Commission v. Dhanitha M.A.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** ## **OP(KAT).No.235 OF 2017(Z)** **AGAINST THE ORDER/JUDGMENT IN OA 2172/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 3.2.2017** ## **PETITIONER/RESPONDENT** **KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM,THIRUVANANTHAPURAM, KERALA - 695 004.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENT/APPLICANT** **DHANITHA M.A. AGED 30 YEARS, W/O.BIJU M.,MATHUMMAL HOUSE, CHOOLA, MOWANCHERRY P.O., KANNUR,KERALA - 670 613, MOB:9496079273.** **R1 BY ADV. SRI.S.ANEESH R1 BY ADV. SRI.P.NANDAKUMAR** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 02-09-2019, THE COURT ON 04-09-2019 PASSED THE FOLLOWING:** OP(KAT) 235/2017 -2- **==> picture [161 x 26] intentionally omitted <==** ## **[Dated this the 4[th] day of September, 2019]** Ashok Menon, J. The Kerala Public Service Commission (KPSC) is the petitioner, aggrieved by the impugned order of the Kerala Administrative Tribunal (KAT) in OA No.2172/2015 dated 3.2.2017. 2. The facts in brief are thus: The respondent/applicant who had applied for selection to the post of Lecturer in Chemistry (category No.586/2012) in the Department of Collegiate Education appeared in the OMR test conducted on 8.8.2014 with Annexure-A2 hall ticket issued to her and claims to have fared well in the examination. In Annexure-A3 shortlist published by the KPSC on 28.10.2015 her name did not find a place. The KPSC published Annexure-A4 notification on the same date detailing the list of candidates whose answer sheets were invalidated, and to her surprise, she found her register No.101250 under the heading 'name and date not shown on photograph'. 3. According to the applicant, she had OP(KAT) 235/2017 -3- uploaded her photograph with her name and date of photograph on it. Hence, Annexure-A4 is apparently incorrect is the contention raised by the applicant. She made a request for participating in the selection process. But there was no response and hence she approached the KAT seeking the prayer to quash AnnexureA4 and include her name in Annexure-A3 shortlist. 4. The instructions of the KPSC require applicants to furnish their personal particulars in the one time online registration model. They are also required to upload their photographs thus: “Photographs uploaded should be of colour/black & white taken after 31.12.2010, having 200 pixles height, 150 pixels width, not exceeding a file size of 30 Kb, in jpg format. The face and the upper part of the shoulders should be clear, background should be white/light coloured, face centrally focussed and eyes open and vivid. The photographs must indicate clearly the name of the candidate along with the date of taking the photograph. It should be without cap (except cap and veil as part of religious practice) or goggles.” The KPSC in their reply statement admitted that the applicant had uploaded her photograph with her name and date of photograph. But, it was defective since the name and date on the photograph were not clear and could not be read with naked eyes. She was permitted to write the OP(KAT) 235/2017 -4- examination provisionally by obtaining a declaration from her subject to detailed verification. It is also contended that the applicant failed to correct the application by uploading her photograph adding name and date on the photograph by availing the opportunity of one time settlement for 45 days provided between 1.4.2014 to 15.5.2014. According to the applicant, she had uploaded her photograph with her name and date of taking the photograph in a legible manner, on 10.9.2014. 5. The applicant would contend that the KPSC has changed its stand in the reply statement from what is mentioned in Annexure-A4 by stating that in the photograph uploaded by the applicant the name and date on the photograph are not legible and clear as against the reason mentioned in Annexure-A4 which says that there was no name and date on the photograph. 6. The Tribunal after considering the contentions raised by the applicant and the reply submitted by the KPSC, allowed the application holding that the ground stated by the KPSC that name and date are not shown in the photograph is arbitrary and therefore the answer script of the applicant cannot be invalidated. Necessary directions were given to the OP(KAT) 235/2017 -5- KPSC to issue orders within a period of one month to include the name of the applicant in Annexure-A3 ranked list (shortlist). 7. Aggrieved by this order, the KPSC has filed this Original Petition. 8. The KPSC relies mainly on the Division Bench decision of this Court in Sasikala T. v. Kerala Public Service Commission and Another [2012 (2) ILR (Ker) 663 : 2012(2) KHC 441] to contend that the application to the KPSC without name and date on the photograph is not acceptable. The Division Bench had in the aforesaid decision held that the need for mentioning of the name of the person is to identify the applicant. The date on which the photograph was taken has to be mentioned. That is for the purpose of ensuring that the photograph was taken within a period of six months before the application. And that, not mentioning the identity of a person and the date on which the photograph is taken, on the photograph is not a minor defect which could be ignored or cured. In Sasikala's case, the photograph was uploaded by the candidate without the name and the date on which the photograph was taken unlike in the instant case, where the OP(KAT) 235/2017 -6- photograph was uploaded with the name and the date on which it was taken, but did not appear to be legible and clear. In Annexure-A4, the specific reason for rejecting the application of the applicant was that the name and date not shown on the photograph. The contention that it is not legible and clear comes up only later in the reply that the KPSC had filed before the KAT. The learned counsel for the applicant relied on the decision in Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others [1978 KHC 478] , wherein it is held as thus: “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. In Gordhandas Bhanji (AIR 1952 SC 16) (at p.18): “Public Orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and OP(KAT) 235/2017 -7- conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older.” We are in agreement with the Petitioner insofar as the rejecting the candidature in case the photograph of the applicant is uploaded without name and date on it. But, it is another thing to contend that the name and date are not clear or legible. Therefore, the decision in Sasikala (supra) has no relevance to the facts and circumstances of the case in hand. It is pertinent to note that nowhere in the instructions extracted above is it stated that the name and the date should be of a particular font size. The size of the photograph is mentioned and the KPSC has no case that the photograph uploaded is not of the requisite size. All that is stated in the instructions is that 'the photograph must indicate clearly the name of the candidate along with the date of taking the photograph'. The argument of the learned counsel for the applicant is that though the name and the date are legible when viewed on the computer screen, the print out is difficult to be read with naked eyes. 9. We are in agreement with the findings of OP(KAT) 235/2017 -8- the Tribunal that the candidature of the applicant was wrongly rejected. There is no reason whatsoever to interfere with that finding of the Tribunal. The Original Petition fails and is accordingly dismissed. **Sd/-** **V.CHITAMBARESH** **JUDGE** **Sd/-** **ASHOK MENON** **JUDGE** jg OP(KAT) 235/2017 -9- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1.** **TRUE COPY OF THE O.A.2172 OF 2015 WITH ANNEXURES.** **EXHIBIT P2. TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE COMMISSION.** **EXHIBIT P3. TRUE COPY OF REJOINDER AFFIDAVIT FILED BY THE APPLICANT.** **EXHIBIT P4. TRUE COPY OF THE ORDER IN OA NO.2172 OF 2015 DATED 03.02.2017.** - **EXHIBIT P5 TRUE COPY OF THE ADMISSION TICKET OF THE RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE PHOTOGRAPH UPLOADED BY THE CANDIDATE IN HER PROFILE IN THE DESCENDING ORDER** **EXHIBIT P7. TRUE COPY OF THE DECISION OF THE COMMISSION DATED 31.03.2014. EXHIBIT P8. TRUE COPY OF THE DECISION OF THE COMMISSION DATED 20.02.2017.** **RESPONDENT'S EXHIBITS** **EXHIBIT R1 TRUE COPY OF RANKED LIST DATED 15.12.2016** **EXHIBIT R1(a) TRUE COPY OF JUDGMENT DATED 16.1.2017 IN WPC NO.39437 OF 2016 EXHIBIT R1(b) TRUE COPY OF THE PRINT OUT OF THE PROFILE OF THE RESPONDENT** jg