Kerala Public Service Commission v. Pradeepan K.P. and others (W.A. No. 2327 of 2017)

_**WA.2327/17**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941** ## **WA.No.2327 OF 2017** ## **AGAINST THE ORDER/JUDGMENT IN WPC 19330/2015 DATED 23-03-2017 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY THE SECRTETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 695 001.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENT/S:** - **1 PRADEEPAN K.P. S/O SANKARAN, KARIYATTIPURATH VEEDU, AYANIKADU P.O., IRINGAL VIA, KOZHIKODE DISTRICT - 673 521.** - **2 SUNIL KUMAR C. S/O.NARAYANAN, CHATHOTH VEEDU,IRINGAL P.O., VATAKARA VIA,KOZHIKODE DISTRICT - 673 521.** - **3 SANIL C.G. S/O.C.A.GOPI, CHAKKALAKKAL VEEDU,VAZHAKULAM P.O., ALUVA - 683 105,ERNAKULAM DISTRICT.** - **4 PRAJITH P. S/O.KUMARAN, POONTHOTTIL VEEDU,IRINGAL P.O., VATAKARA VIA,KOZHIKODE DISTRICT - 673 521.** - **5 ANIL KUMAR T.L. T.L.BHAVAN, NAGACHERRY,KALLADAKUNNU, ANAD P.O.,NEDUMANGAD, THIRUVANANTHAPURAM - 695 544.** - **6 KERALA STATE ROAD TRANSPORT CORPORATION** _**WA.2327/17**_ 2 **REPRESENTED BY CHAIRMAN AND MANAGING DIRECTOR,KSRTC, TRANSPORT BHAVAN, FORTE,THIRUVANANTHAPURAM - 695 001.** **7 MURALIDHARAN S. MANNIKULAM HOUSE,NEDUATHUPARA,PALAKKAD - 678 574.** **R1-5 BY ADV. SRI.KALEESWARAM RAJ R6 BY ADV. SRI.T.P.SAJAN (B/O) R7 BY ADV. SRI.RAJESH SIVARAMANKUTTY (B/O)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**WA.2327/17**_ 3 **“C.R”** ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ## **----------------------------------------------W.A.No. 2327 of 2017 ----------------------------------------------Dated this the 15[th] day of January, 2020** ## **JUDGMENT** ## _**Arun, J.**_ The Public Service Commission is in appeal, aggrieved by the direction in the impugned judgment, whereby the learned Single Judge, after finding the writ petition to be bad for delay and nonimpleadment of necessary parties, proceeded to issue certain directions in favour of the petitioners. 2. The facts in brief, as narrated in the writ petition, are as follows; The petitioners had applied for selection to the post of Painter Grade-II in the KSRTC, pursuant to Exhibit P1 notification dated 14.5.2008 issued by the PSC. The essential qualification prescribed in the notification was ability to read and write Malayalam, Tamil or Kannada and to paint letters and mix colours properly. Minimum five years experience as Painter was also prescribed. After conduct of OMR test and verification of certificates, a short list was published. Apparently due to dearth of SC/ST candidates in the list, the PSC called for experience certificates from all candidates who had appeared in _**WA.2327/17**_ 4 the OMR test. After verification of valid certificates thus received, a fresh probability list was published on 30.11.2012. Subsequently, based on requests received from a large number of candidates seeking one more opportunity to submit defect free certificates, the PSC decided to provide a further opportunity for production of certificates. Accordingly, an addendum notification and probability list containing the names of 1303 candidates was published on 8.11.2013. The petitioners allege that, contrary to the stipulation in Exhibit P1 notification, the PSC had exempted SC/ST candidates from production of experience certificates, based on its Circular No.7/2013 dated 15.5.2013 and Exhibit P5 Circular issued by the Government. The names of those SC/ST candidates without the requisite experience were also included in the probability list. The petitioners therefore sought to quash the probability list, to the extent it contains the names of candidates without the notified experience and to modify the rank list by deleting the names of those candidates. 3. The PSC admitted of having exempted candidates belonging to SC/ST community from submission of experience certificates on the basis of its Circular dated 15.5.2013. It was submitted that the ranked list was published way back on 25.3.2014 whereas the writ petition was filed only on 25.6.2015, more than a year later. The third respondent, who was impleaded in his alleged capacity as the _**WA.2327/17**_ 5 representative of the SC candidates whose names were included in the probability list in spite of their not having the requisite experience, submitted that he had the requisite experience and that on the basis of his rank, he was issued appointment order dated 4.9.2014 and had joined service. 4. The learned Single Judge found that, having prescribed five years experience in Exhibit P1 notification, the PSC could not have provided exemption for the SC/ST candidates. The reliance placed by the PSC on Exhibit P5 for granting exemption to SC/ST candidates was found to be faulty, since Exhibit P5 was intended to grant liberty to the public sector undertakings to relax the requirement of experience in the case of SC/ST candidates, if deemed necessary. It was found that the KSRTC not having sought for relaxation of qualification in accordance with Exhibit P5, the PSC could not have granted such relaxation on its own. 5. After finding the challenge to be sustainable, the learned Single Judge found that the petitioners had failed to properly explain the reason for the delay in filing the writ petition. It was also found that the impleadment of one person in a representative capacity from among the SC/ST candidates would not satisfy the requirement of giving notice to the affected parties. Reliance was placed on the decision of the Honourable Supreme Court in _**Siraj v. High Court of**_ _**WA.2327/17**_ 6 _**Kerala**_ [2006 (2) KLT 923] to hold that no order effecting an identifiable group of persons could be passed by impleading a person from among the group in a representative capacity. 6. Having found the writ petition to be defective for the aforementioned reasons, the learned Single Judge mulled over the question as to what relief can be granted to the petitioners equitably, so that their legitimate claim for appointment may not be frustrated on account of the irregular action of the PSC in having adopted Exhibit P5 for the purpose of accommodating ineligible candidates. The relief was molded in such a manner that it would not affect the candidates already appointed but would safeguard the interest of the petitioners. Accordingly, the PSC was directed to enquire as to how many ineligible SC/ST candidates without requisite experience was included in the ranked list and whether the petitioners could have been issued an advice memo if the unqualified candidates from the SC/ST communities had not been included. It was directed that, on any of the petitioners being found eligible, the PSC should inform the fact to the KSRTC, who will thereafter stand obligated to consider the appointment of such number of petitioners who are so found by the PSC to be eligible for being appointed to future vacancies, as and when vacancies arise in the service of the KSRTC, notwithstanding the expiry of Exhibit P4 ranked list. _**WA.2327/17**_ 7 7. One among the grounds of challenge is based on Exhibit P5 Circular, which according to the PSC, clothe it with sufficient authority to consider the candidature of SC/ST candidates without the requisite experience. This ground is liable to be rejected for the reason stated in the impugned judgment and also on the basis of the well accepted principles of no change being brought about to the eligibility conditions/criteria midstream during a selection process nor qualifications other than notified ones being accepted (see _**Zonal Manager, Bank of India, Kochi and others v. Aarya K.Babu and another**_ [(2019) 8 SCC 587]. 8. The thrust of the challenge is as to the legality of issuing directions, after finding the writ petition to be defective on the ground of unexplained delay and non impleadment of affected persons. We find substantial force in the challenge, based on the well established principle that equity cannot override law and for the reason that by the direction the PSC is compelled to keep live an expired ranked list and to make appointments from that list, whenever vacancies arise in future. The principle 'dura lex sed lex', thereby meaning that 'the law is hard but it is the law', is well settled. Equity can only supplement and cannot supplant the law. Therefore, having found the writ petition to be defective, relief could not have been granted on equitable considerations, especially since the affected persons are the _**WA.2327/17**_ 8 undisputed persons who aspire to the future vacancies. 9. As rightly contended by Sri.P.C.Sasidharan, learned Standing Counsel for the PSC, the direction contained in the impugned judgment amounts to keeping alive an expired ranked list. Moreover, any appointments made from Exhibit P4 ranked list, to vacancies arising in future, would upset the process of reporting of vacancies, advice and appointment. Any such interference with the future appointments would be to the detriment of the SC/ST candidates in those lists. Hence, we are unable to sustain the directions contained in the judgment. In the result, the impugned judgment is set aside and the writ appeal is allowed. Sd/- ## **VINOD CHANDRAN JUDGE** Sd/- **V.G.ARUN JUDGE** _vgsx_