Kerala Public Service Commission v. Faisal A., Varghese T.P., and State of Kerala

O.P.(KAT)No.38 of 2017 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY ,THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940** ## **OP(KAT).No. 38 of 2017** **AGAINST THE ORDER IN OA 718/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 26-05-2016** ## **PETITIONER:** **THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, PATTOM P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENTS:** **1 FAISAL.A S/O.ABDUL AZEEZ, RESIDING AT CHIRAYIL HOUSE, ALISSERY WARD, ALAPPUZHA-688001.** **2 VARGHESE T.P. S/O.T.V.POULOSE, RESIDING AT THYPARAMBIL HOUSE, ALISSERY WARD, ALAPPUZHA-688001. 3 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, WATER TRANSPORT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.K.N.REMYA SMT.L.ANNAPOORNA SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.S.DEEPAK SRI.V.VARGHESE** **GP-SRI T.RAJASEKHARAN NAIR.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 4.12.2018, THE COURT ON 18.01.2019,PASSED THE FOLLOWING:** ## **C.T.RAVIKUMAR & V.G.ARUN, JJ.** ----------------------------------------------- ## O.P.(KAT)No.38 of 2017 ----------------------------------------------Dated this the 18[th] day of January, 2019 ## **JUDGMENT** ## **V.G.Arun, J.** The Original Petition is filed by the Kerala Public Service Commission, aggrieved by the order of the Kerala Administrative Tribunal, directing to include the names of the applicants (respondents 1 and 2) before the Tribunal, in the rank list of Boat Master in the Kerala State Water Transport Department. 2. The Public Service Commission had, by AnnexureA1 Notification dated 30.12.2010, invited applications for appointment to the post of Boat Master in the Kerala State Water Transport Department. The qualification prescribed for the notified post was pass in S.S.L.C or equivalent and Boat Masters' license. The last date for receipt of applications was fixed as 2.2.2011. Respondents 1 and 2 O.P.(KAT)No.38 of 2017 3 submitted their applications, participated in the selection process and were included in Annexure-A2 short list. Thereafter, respondents 1 and 2 were called for certificate verification on 30.7.2014 and were directed to cure the defects regarding their Boat Masters' license. The defect pointed out by the Public Service Commission was that respondents 1 and 2 did not have a Boat Masters' license as on the last date of submission of applications and they had only probationary licenses (Annexures-A3 & A4). 3. Though respondents 1 and 2 obtained the Boat Masters' license on 25.2.2011 (Annexures-A5 & A6), the licenses having been issued 23 days after the last date for submission of applications as per Annexure-A1, the Commission was not prepared to accept the license and include the names of respondents 1 and 2 in the rank list. Thereupon, respondents 1 and 2 approached the Government and the Public Service Commission by filing Annexures-A7 & A8 representations wherein they requested for relaxation of the condition in Annexure-A1 Notification that the candidate should possess a Boat Masters Licence as on the date of submission of the application, in exercise of power under Rule 39 of Part II K.S & S.S.R. In their representation, respondents 1 and 2 pointed out O.P.(KAT)No.38 of 2017 4 that the delay in issuing Boat Masters' license to them was not for any reason attributable to respondents 1 and 2, but for the reason that consequent to the boat tragedy at Thekkadi, the issuance of Boat Masters' license was temporarily stopped and was resumed only after the authority to issue license was entrusted with the Ports Department. Respondents 1 and 2 had also stated that immediately after resumption of the process of issuance of license, they had appeared for the examination and had obtained Annexure-A5 & A6 licenses. Since the decision on Annexures-A7 & A8 was being unduly delayed, respondents 1 and 2 filed O.A.No.1434 of 2014 before the Kerala Administrative Tribunal, which resulted in Annexure-A9 order, directing the Government and Public Service Commission to take a decision on Annexures-A7 & A8 respectively, within one month. 4. In accordance with the direction in Annexure-A9 order, the Government considered the representation and decided to request the Public Service Commission to include respondents 1 & 2 in the list for interview for selection to the post of Boat Master, by condoning the delay of 23 days in obtaining the license. This decision was taken in view of the fact that if the condition prior to 2008 had prevailed and the ban on the issue of license and the time taken for resuming the process for issue of O.P.(KAT)No.38 of 2017 5 licence had not taken place, respondents 1 and 2 would have obtained the license in 2008 itself and would have been qualified to apply for the post of Boat Master. The Public Service Commission considered the Government's decision but stuck to its stand and rejected the request of the applicants, mooted through the Government, vide Annexures-A11 & A12 on the ground that respondents 1 and 2 did not possess valid Boat Masters' license as on 2.2.2011, the last date for submission of the application. 5. Being aggrieved by Annexures-A11 & A12 and refusal of the Government to relax the requirement of qualification of possessing valid Boat Masters' license as on the date of submission of the application, in exercise of power under Rule 39 of Part II K.S & S.S.R, the Original Application was filed by respondents 1 and 2. 6. By the impugned order, the Tribunal found that it is a fit case for the Government to grant the claim of the applicants by invoking Rule 39 of Part II K.S & S.S.R and directed the Government to reconsider Annexure-A7 representation. Further direction was issued to the Public Service Commission to include the names of the applicants in the ranked list based on the order passed by the Government. O.P.(KAT)No.38 of 2017 6 7. Ext P4, produced along with the Original Petition is the order issued by the Government on the basis of the direction contained in the impugned order of the Tribunal. In Ext P4 the Government directed the Commission to revisit its earlier order, condone the delay of 23 days in obtaining the statutory Boat Masters' license and to include the petitioners in the ranked list of persons to be appointed to the post of Boat Master in the Kerala State Water Transport Department. 8. In the Original Petition, the Public Service Commission contended that there cannot be any relaxation of requirements in Annexure-A1 Notification and that the Commission as well as the candidates are bound by the Notification. It was contended that it is the settled legal position that suitability and eligibility of a candidate should be with reference to the last date fixed for receipt of application, unless the Notification prescribes another date. In order to buttress this contention, the learned counsel for the Public Service Commission relied on the decisions of the Hon'ble Supreme Court in **Rekha Chaturvedi v University of Rajasthan and others (1993 Suppl.(3) SCC 168),** wherein, the Apex Court had laid down guidelines for future selection process to the post of Assistant Professors in Rajasthan University. Guideline No.(B) in the said judgment, which is ## O.P.(KAT)No.38 of 2017 7 relevant for the instant case reads as under: “The candidates selected must be qualified as on the last date for making applications for the posts in question, or on the date to be specifically mentioned in the advertisement/notification for the purpose. The qualifications acquired by the candidates after the said date should not be taken into consideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement/notification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do not have such qualifications do not apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be considered and may even be better then those who apply, can have a legitimate grievance since they are left out of consideration.” Therefore, there cannot be any doubt that only candidates who had the requisite qualification were entitled to submit applications seeking appointment. 9. Annexure-A1 Notification specifically mandate that candidates should possess current Boat Masters' license on the last date for receipt of application and at all stages of selection (practical test/interview) to the post. It is an undisputed fact that respondents 1 and 2 did not possess current Boat Masters' O.P.(KAT)No.38 of 2017 8 license on the last date for receipt of applications (2.2.2011). In such circumstances, respondents 1 and 2 were ineligible to submit applications to the notified post. Then the only question is whether, the delay in obtaining the requisite license could be condoned, by issuing a direction, which, in effect, would amount to extending the period fixed for submission of the requisite license to suit the needs of respondents 1 and 2. 10. In our view, neither the Government nor the PSC is vested with the power to extend the last date for submission of applications, in the case of two applicants. Rule 39 of Part II K.S & S.S.R does not empower the Government to extend the last date for submission of application in the case of two applicants, to enable those applicants to become eligible for consideration. As rightly contended by the learned counsel for the Public Service Commission, O.A.No.254 of 2013, mentioned in the impugned order, was a case where conditions contained in the Notification was modified by the Commission by issuing an erratum Notification, which resulted in a situation where applications of candidates who did not possess registration with the Medical Council happened to be rejected and it was under such circumstances that the condition was relaxed. Though the O.P.(KAT)No.38 of 2017 9 relaxation granted by the Government was upheld by the Hon'ble Supreme Court, it was clarified that the order was issued in the peculiar facts and circumstances of that case and that it cannot be treated as a precedent. In view of the legal position, as laid down by the Hon'ble Supreme Court in Rekha Chaturvedi's case (supra) and for reasons mentioned above, the decision of the Tribunal cannot be sustained. Having held so, we allow the appeal by setting aside the order of the Kerala Administrative Tribunal in OA(EKM) No.718 of 2015. Consequently, O.A.(EKM) No.718/2015 will stand dismissed. Sd/- ## **C.T.RAVIKUMAR, JUDGE** Sd/- **V.G.ARUN, JUDGE** cms O.P.(KAT)No.38 of 2017 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1-** **TRUE COPY OF THE OA.(EKM) NO.718 OF 2015 WITH ANNEXURES.** **EXHIBIT P2TRUE COPY OF THE MISCELLANEOUS APPLICATION WITH ANNEXURE.** **EXHIBIT P3TRUE COPY OF THE ORDER OF THE TRIBUNAL IN OA.(EKM) NO.718 OF 2015 DATED 26/05/2016.** **EXHIBIT P4TRUE COPY OF THE GOVERNMENT ORDER G.O. (RT)NO.317/2016/TRANS. DATED 30/07/2016.** RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms