Kerala Public Service Commission v. Jovitha Lincy V.J. and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR &** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 17TH DAY OF JULY 2018 / 26TH ASHADHA, 1940 OP(KAT).No. 387 of 2017** **AGAINST THE ORDER/JUDGMENT IN OA(EKM) 1101/2017 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 20-07-2017** ## **PETITIONER(S)/3RD RESPONDENT** **KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY SECRETARY, PATTOM P.O., THIRUVANANTHAPURAM-695004, KERALA.** **BY ADV.SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENT(S)/APPLICANT & RESPONDENTS 1 AND 2:** **1. JOVITHA LINCY V.J AGED 32 YEARS, W/O. EDWIN JACOB, H. NO. 15/2255A, NEAR SAUDI SCHOOL, MUNDAMVELI P.O., ERNAKULAM, KERALA-682507.** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695033, KERALA.** **3. DIRECTORATE OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS BHAVAN, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, KERALA-695033.** **R1 BY ADV. SRI.V.K.SATHYANATHAN R1 BY ADV. SRI.JOHN T.PAUL** **R2, 3 BY ADV.T.RAJASEKHARAN NAIR,GOVERNMENT PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 17-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No. 387 of 2017 (Z)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT-P1 TRUE COPY OF THE O.A (EKM) NO. 1101 OF 2017 WITH ANNEXURES EXHIBIT-P2 TRUE COPY OF THE ORDER IN O.A (EKM) 1101/2017 DATED 20/07/2017 EXHIBIT-P3 TRUE COPY OF THE REPORT OF C-DAC EXHIBIT-P4 TRUE COPY OF THE OFFICIAL NOTIFICATION OF INTERVIEW PROGRAMME PUBLISHED IN THE WEBSITE OF THE COMMISSION EXHIBIT-P5 TRUE COPY OF THE PSC BULLLETIN** ## **RESPONDENTS EXHIBITS** ## **NIL** ## **SKS** **TRUE COPY** **P.A.TO JUDGE** ## **C.T. RAVIKUMAR & A.M. BABU,JJ. = = = = = = = = = = = = = = = = = OP(KAT) No.387 of 2017** **- - - - - - -- - - - - - - - - - - - - -** _Dated this the 17[th] day of July, 2018_ ## **JUDGMENT** ## **C.T. RAVIKUMAR J.** The Kerala Public Service Commission, the third respondent in O.A (EKM) No.1101/2017 has filed the captioned Original Petition challenging the order passed thereon by the Tribunal. The Original Application was filed by the first respondent herein. She moved the said Original Application on being aggrieved by the rejection of her representation wherein she sought for conducting an interview for her on the ground that she had not received any intimation from the Public Service Commission with respect to the schedule of interview. The Tribunal after considering the rival contentions allowed the Original Application relying on various decisions passed by the Tribunal specifically referred to in paragraph 6 of the impugned order. Consequently, Annexure A14 communication whereby the representation of the first 2 OP(KAT) No.387 of 2017 respondent was rejected, was set aside. As a necessary sequel a direction was issued to the Commission to conduct an interview for the applicant for appointment to the post of Lecturer in Zoology which is a part of the selection process. 2. It is necessary to refer to the facts, briefly, for a proper disposal of this Original Petition. The first respondent herein applied for appointment to the post of Lecturer in Zoology under the Kerala Collegiate Education Department pursuant to a notification issued by the Kerala Public Service Commission. On coming out successful in the written test she was included in the short list prepared for eligible candidates to be called for interview. According to the petitioner, she was not available in the State of Kerala and she was in Goa at the relevant point of time. It is contended that she had not received the SMS sent by the petitioner, the Public Service Commission intimating the date of interview. Hence, she filed the aforementioned representation seeking to conduct an interview as part of the selection process in 3 ## OP(KAT) No.387 of 2017 question. It is also to be noted that since no action was taken on her representation earlier the first respondent had to approach the Tribunal by filing O.A (EK) No.722/2017. That was disposed of on 7.4.2017 with a direction to the Public Service Commission to consider and dispose of the said representation. Evidently, the said representation was considered and it was rejected and that constrained the first respondent to approach the Tribunal by filing O.A No.1101/2017 which culminated in the impugned order. The said Original Application was allowed by the Tribunal as mentioned above. 3. Various grounds have been raised by the petitioner to challenge the order passed by the Tribunal. It is the case of the petitioner, the Kerala Public Service Commission that as part of the selection process for appointment to the post of Lecturer in Zoology in the Kerala Collegiate Education Department interview was scheduled to be held on 8.2.2017, 9.2.2017 and 10.2.2017. In fact, as 4 ## OP(KAT) No.387 of 2017 scheduled, interview was also conducted on those days. The factum of scheduling interviews on those days was intimated to the candidates eligible for partaking in the interview through SMS, in cases where the candidates concerned provided the mobile number to the Commission in their profile. That apart, it is contended that the dates of interview were notified in the website of the Commission, then in the OTR profile and also in newspapers. 4. The learned counsel appearing for the petitioner submitted that in the contextual situation it is relevant to refer to the general conditions of notification issued by the Commission, which mandates thus :- 29. Admission tickets of those posts for which application are received through online facility as per One Time Registration Scheme will not be sent through post. The Admission ticket of eligible candidates will be made available in their profiles. Candidates can download Admission ticket online by logging into their profile using their User ID and password. ## 30.Candidates who include their mobile 5 OP(KAT) No.387 of 2017 number/e-mail ID in the application will be informed about test/interview through electronics media (mobile/e-mail). 5. The learned counsel further submitted that a careful scanning of the contentions raised in the OA would reveal that the 1[st] respondent/applicant did not have a case that SMS was not sent whereas the specific case of the 1[st] respondent is that it was not received by her. In the light of the said contentions, the learned counsel also drew our attention to a recital from the representation submitted by the 1[st] respondent viz, Annexure-A12, which reads thus : "Sir, it was a gross negligence on my part that I didn't check the PSC website. However, the reason behind for not checking the website was that I never expected for an interview call at such a short period. I would like to mention here that I was also included in HSST Zoology rank list (Rank -46, LC-2) on 17.2.2014 and still waiting t receive an Appointment order." 6. It is further submitted by the learned counsel for the petitioner that, in the light of the decisions of this Court 6 ## OP(KAT) No.387 of 2017 in OP(KAT) Nos.242 and 443 of 2017, the Tribunal ought to have found that there was due intimation to the petitioner regarding the schedule of interview and it is owing to the negligence on the part of the petitioner that she could not participate in the interview. In such circumstances, the impugned order invites interference. To establish the contention that SMS was sent, the factum of the schedule of interview was intimated in relation to the appointment to the post concerned and was published in the website of the Commission and also published through the PSC bulletin the petitioner Commission had produced Exts P3 to P5 along with the OA. 7. Per contra, the learned counsel appearing for the 1[st] respondent/applicant submitted that Exts.P3 to P5 were not at all available for consideration before the Tribunal and hence the petitioner is not justified in relying on such documents to canvass the correctness of the order passed by the Tribunal. The learned counsel further contended that 7 OP(KAT) No.387 of 2017 the Tribunal had rendered the judgment in favour of the 1[st] respondent relying on its earlier decisions, evidently taking into account the fact that in respect of computer and mobile phones the chance of failure is always there. The Tribunal had also taken note of the steps taken by the Commission and observed that the chance of failure could not be ruled out and therefore it is only appropriate to give one more chance to the applicant who is fully qualified for appointment to the said post and that it is such considerations that culminated in the impugned order. 8. We have considered the rival contentions. As noticed hereinbefore, the interview for appointment to the post for which the petitioner applied, was conducted on 8.2.2017, 9.2.2017 and 10.2.2017. The petitioner was to attend the interview conducted on 9.2.2017. It is to be noted that after conducting interview in respect of the said selection and complying with the rest of the procedures, the Commission published the rank list on 31.7.2017. True that 8 OP(KAT) No.387 of 2017 the OA was filed prior to the publication of the final list; to be precise, on 9.6.2017 and that the O.A came to be disposed of on 20.7.2017 prior to the publication of the list. As noticed hereinbefore the precise contention of the petitioner is that intimation for participating in the interview for appointment to the post of Lecturer in Zoology pursuant to the notification concerned was given by the Commission in its website, in the OTR profile of the 1[st] respondent and SMS was sent to the mobile phone of the 1[st] respondent. It is also the contention of the petitioner that besides such steps, the said fact was published in newspapers as well. A perusal of the contentions raised by the 1[st] respondent in the OA would reveal that the petitioner did not dispute the publication of the details of the interview in the website of the Commission, in the OTR profile as also in the newspapers. Her case is that SMS allegedly sent by the Commission was not received by her. It is also her precise case that the number which was provided to the Commission, viz. 9 OP(KAT) No.387 of 2017 9847871900, was alive and she was using the same. No SMS intimating the date of interview was received by her. Thus it can be seen that the 1[st] respondent did not dispute the contention of the petitioner that the schedule of interview was published by it in its website, OTR profile of the petitioner as also in newspapers. She raised her grievances by taking up the contention that she did not receive SMS allegedly sent by the Commission. It is also the contention of the 1[st] respondent that the last publication in the newspapers could not be effective as at that point of time she was outside the State. In the said circumstances, evidently the 1[st] respondent relied on the decisions of the Tribunal in identical case, viz, **Saiba S. v. State of Kerala and Others (KAT REporter Vol.2 (2013), 82), Sujithra K.L. v. Kerala Public Service Commission and Others (KAT Reporter Vol.2 (2013), 95)** and **Anupama V.R v. Kerala Public Service Commission (KAT Reporter Vol.5 (2016) Part 2, Page 206)** . At the same time, as noticed 10 OP(KAT) No.387 of 2017 hereinbefore the specific contention of the Commission is that the scheduling of the interview was properly advertised in the website, in the OTR profile as also in newspapers besides sending SMS to the petitioner. Thus, it is evident that the dispute is only with respect to the question whether SMS was sent and the same was received. At the same time, in paragraph 5 of the impugned order it is stated thus :- "The learned counsel for the applicant submitted that except the averment that SMS was sent there is no other material to show that the same was received by the applicant." 9. As stated earlier, along with the Original Petition, the petitioner has produced Ext P3 which is the copy of the report of the C-DAC. Exts.P4 and P5 were also produced along with the OP. They are respectively the true copies of the final notification of interview programme published in the website of the Commission and the PSC bulletin. Evidently, these materials were not at all available before 11 OP(KAT) No.387 of 2017 the Tribunal at the time of disposal of the OA. In the matter involving issues as aforesaid, according to us, the question is whether the Commission had sent the SMS. It is also relevant to consider in such circumstances, even if the SMS sent was not received, whether the mode of communicating the date of interview through other methods, were sufficient communication regarding the schedule of the interview. We are of the view that, in that contextual situation, the decisions of this Court in OP(KAT) Nos.242 and 443 of 2017 assume significance. The aforesaid crucial materials were not at all available for consideration before the Tribunal. But at the same time since sufficient pleadings were taken by the petitioner/Commission in that regard before the Tribunal, we are of the considered view that it is just and proper to remit the matter back to the Tribunal for fresh consideration of the OA in the light of the aforesaid materials as also in the light of the decisions of this Court in OP(KAT).242 and 443 of 2017. 12 OP(KAT) No.387 of 2017 10. In such circumstances, to enable the Tribunal to consider the matter afresh, the impugned order is set aside. The matter is remitted back to the Tribunal for fresh consideration in the light of the aforesaid observations. The petitioner shall produce the materials produced along with the O.P before the Tribunal along with appropriate miscellaneous application. Sd/- **C.T.RAVIKUMAR Judge** sd/- **A.M.BABU Judge** sks/mrcs/18.7.