KERALA PUBLIC SERVICE COMMISSION v FAZEELA K.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 28TH DAY OF NOVEMBER 2017 / 7TH AGRAHAYANA, 1939 ## **OP(KAT).No. 278 of 2017** AGAINST THE ORDER/JUDGMENT IN OA/EKM 1593/2016 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 21-12-2016 ## PETITIONER(S)/RESPONDENT KERALA PUBLIC SERVICE COMMISSION THULASI HILLS, PATTOM PALACE P.O, THIRUVANANTHAPURAM, PIN - 695 004, REPRESENTED BY ITS SECRETARY. BY ADV.SRI.P.C.SASIDHARAN, SC, KPSC RESPONDENT(S)/APPLICANT: FAZEELA K. AGED 33 YEARS, W/O. MUHAMMED SUDHEER, KIZHADAYIL HOUSE, IRUMBALASSERY POST, NELLAYI VIA, PALAKKAD DISTRICT - 679 335. R1 BY ADV. SMT.REKHA VASUDEVAN THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 2811-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 278 of 2017 (Z) **APPENDIX** ## PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE O.A (EKM) NO.1593 OF 2016 WITH ANNEXURES. EXHIBIT P2 A TRUE COPY OF THE ORDER IN OA(EKM) NO.1593 OF 2016 DATED 21/12/2016 OF THE TRIBUNAL. EXHIBIT P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE APPLICANT. EXHIBIT P4 A TRUE COPY OF THE HALL TICKET ISSUED TO THE CANDIDATE. EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN OP(KAT) NO.124 OF 2015 (Z) DATED 25.03.2015. /true copy/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & SHIRCY V, JJ.** .............................................................................. **O.P(KAT)No.278 OF 2017** ......................................................................... **Dated this the 28[th] November, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The correctness and sustainability of Ext.P2 order passed by the Tribunal directing to consider the candidature of the respondent made the PSC to feel aggrieved, who is before this Court by way of this Original petition, challenging the same. 2. Heard the learned Standing Counsel for the petitioner as well as the learned counsel appearing for the respondent. 3. The sum and substance of the case projected before this Court is that the PSC had issued Annexure A1 Gazette Notification dated 31.12.2010 inviting applications to the post of Higher Secondary School Teacher (Senior and Junior) in Chemistry. The applicant being qualified in all respects submitted her application, a copy of which has been produced as Ext.P3. In the course of the proceedings, the PSC rejected the candidature as per **2** ## **O.P(KAT)No.278 OF 2017** Annexure A6 dated 15.11.2014, pointing out that in the application, no name and date were put on the photograph, in terms of the relevant conditions. After rejection of the candidature as above, the Rank List was published on 30.12.2014. It is stated that there was no response from the part of the respondent, who later approached the Tribunal stating that she had filed a representation dated 12.02.2015 (Annexure A9) and another representation as well, on 23.07.2016 (Annexure A12). The O.A. was filed with the following prayers: _“i) call for the records leading to Annexures A1 to A10 and to quash Annexure A6 letter set as illegal and arbitrary;_ _ii) Declare that the invalidation of the answer script vide Annexure A4 notification is illegal and unjust and include the applicant in the short list and conduct an interview for the applicant and include her in Annexure A8 ranked list in the appropriate place;_ _iii. Declare that the act of the respondent of non inclusion of the Applicant in the shortlist while other similar candidates were included in the shortlist to be discriminatory and illegal;_ _iv. Declare that the non granting of the benefit of the Annexure A11 judgment to the Applicant is unjust and_ **3** ## **O.P(KAT)No.278 OF 2017** _arbitrary;_ _v. Direct to constitute an interview board/committee and to include her in the rank list at the appropriate rank;_ _vi. Declare that the non consideration of the Annexure A5, Annexure A9 and Annexure A12 representations filed by the Applicants as oppressive, arbitrary and illegal;_ _vii. Pass such other order or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case; AND_ _viii. Award the cost of the Original application to the applicant._ _4. W_ hen the matter came up for consideration on the second or third posting, it was disposed of by the Tribunal by Ext.P2 order, directing the PSC to consider the candidature of the petitioner/respondent herein, which in turn is under challenge, as mentioned above. 5 _._ . The learned Standing Counsel for the PSC submits that non-showing of the name and date on the photograph in the application is fatal, in so far as it is a serious defect, as already held by this Court in **S** _**asikala T. vs. Kerala Public Service Commission and another**_ [ **2012 (2)KLT 585].** Under exactly **4** ## **O.P(KAT)No.278 OF 2017** similar circumstances, a favourable verdict passed by the Tribunal came to be interdicted by this Court, referring to the verdict in _**Sasikala's**_ case and the subsequent ruling as per Ext.P5 judgment dated 25.05.2015. In the said circumstance, the order passed by the Tribunal, by way of Ext.P2 is stated as not liable to be sustained and hence the challenge. 6. The learned counsel appearing for the respondent submits that, in paragraphs 5 and 6 of Ext.P5 judgment, there is a reference as to the relaxation given by the PSC as a “one time measure” for causing the defective applications to be considered. The respondent seeks for similar benefit. The learned counsel submits that it was specifically contended in paragraph 9 of Ext.P1 O.A., that the respondent had corrected her profile and uploaded a fresh photograph with her name and date in 2012 itself, as evident from Annexure A7. This was not controverted by the PSC and as such, the respondent is eligible to have the benefit of 'one time relaxation', in so far as the last date for submitting the application was on 09.02.2011 as notified in Annexure A1 and the 'OMR' test was conducted on 23.02.2013. **5** ## **O.P(KAT)No.278 OF 2017** 7. The learned Standing Counsel for the PSC points out that the scope of the Circular issued by the PSC has been referred to in paragraph 5 itself, while passing Ext.P5 verdict and that the 'one time relaxation' was given only in respect of the period from 01.04.2014 to 15.05.2014. It is pointed out that the PSC was not given sufficient time to putforth its version by filing a reply statement, as the matter was disposed of immediately after filing the O.A. It is also pointed out that the application submitted by the respondent was rejected on 15.11.2014, whereas the O.A. was filed only on 20.10.2016, much after the stipulated period of limitation. 8. The learned counsel for the respondent points out that she had filed Annexure A9 representation on 12.02.2015 and no orders were passed by the PSC in the said representation. Even though it is stated across the Bar that the said representation was sent by post, no materials are produced as to the factum of filing the said representation either by way of endorsement obtained from the PSC or as to sending by registered post. This being the position, this Court cannot place any reliance upon **6** ## **O.P(KAT)No.278 OF 2017** Annexure A4 to stretch the cause of action. Admittedly, the respondent approached the Tribunal by fling O.A. only on 20.10.2016, whereas she was intimated as to the rejection of her application/candidature by the proceedings dated 15.11.2014. On this ground as well, the matter is not liable to be interdicted by this Court, as it was not liable to be entertained by the Tribunal at all. It is further brought to the notice of this Court by the learned Standing Counsel for the PSC that the correctness of the Circular issued by the PSC granting 'one time relaxation' itself was under challenge in **O.P(KAT)No.247 of 2014.** The rationale in fixing the stipulation/rider classifying the applications as two different groups, was considered and the course pursued by the PSC was upheld by the Bench as per the observation in paragraph 3 of the judgment dated 22.08.2014. 9. We do not find any reason to take a different view from the view expressed by the Bench in the aforesaid cases. In the above circumstance, we find that the challenge raised by the PSC has to be sustained. We find no reason to have given any direction to the PSC as ordered by the Tribunal vide Ext.P2. **7** ## **O.P(KAT)No.278 OF 2017** Accordingly Ext.P2 is set aside. The Original Petition stands allowed and the Original Application preferred by the respondent stands dismissed. **P.R. RAMACHANDRA MENON, JUDGE** **JUDGE** lk