KERALA PUBLIC SERVICE COMMISSION v Sini P.V, Sheeba K, Sheena M.P.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** **OP(KAT).No.34 OF 2015(Z)** **AGAINST THE ORDER IN OA (EKM) NO.242/2014 DATED 13-08-2014 OF KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/RESPONDENT:** **THE KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM - 695 004, REPRESENTED BY ITS SECRETARY. BY ADV. SHRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENTS/APPLICANTS:** **1 SINI P.V W/O. SHAJITH K, PADANNA VALAPPIL, KONTHAMKULANGARA, P.O. ATHALOOR, MALAPPURAM, KERALA - 679 573. 2 SHEEBA K. W/O. AJAYAKUMAR, KADANCHIRA HOUSE, KLARI P.O., MALAPPURAM, KERALA -676 501. 3 SHEENA M.P. W/O. AJITHKUMAR T., THAYYIL HOUSE, VALLIKUNNU P.O., MALAPPURAM, KERALA -673 314.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No. 34 of 2015 2 ## **ALEXANDER THOMAS & K. BABU, JJ.** ---------------------------------------------------- O.P.(KAT) No. 34 of 2015 _[arising out of order dated 13.08.2014 in O.A. (Ekm) No.242/2014 of K.A.T., EKM Bench]_ ---------------------------------------------Dated this the 26[th] day of March 2021 ## **JUDGMENT** ## **Alexander Thomas, J.** The prayers in the aforecaptioned original petition filed under Articles 226 & 227 of the Constitution of India are as follows (see page No.7 of the paper book of this OP):- - _“i) To set aside the order dated 13/08/2014 in O.A. 242 of 2014;_ _And_ - _ii) To issue such other writ, order or direction as this Honourable Court may deem fit and proper in the circumstances of this case.”_ 2. Heard Sri.P.C.Sasidharan, the learned Standing Counsel for the Kerala Public Service Commission (PSC) appearing for the petitioner in the O.P./the sole respondent in the original application before the Tribunal. The Registry has earlier endorsed on 04.10.2019 that notice to the 3[rd] respondent has been duly served. Later, it has been ordered that notice O.P.(KAT) No. 34 of 2015 3 process on R-1 and R-2 have also been duly completed. However, none of the three respondents have entered appearance in the matter so far though the original petition has been filed as early as on 10.02.2015 and notice has been issued by this Court as early as on 20.02.2015. 3. The prayers in the instant Ext.P1 original application, O.A. No.242/2014, filed by the respondents herein (the original applicants) before the Kerala Administrative Tribunal (KAT), Ernakulam Bench, are as follows:- (see page Nos.21 of this paper book):- - _“a) Direct the respondent to remove the registration numbers of the applicants from Annexure-A3 list and to value their respective answer sheets and to publish the results and to include their registration numbers in Annexure -A2 short list to the post of Higher Secondary School Teacher Mathematics (Senior & Junior), NVT-Mathematics (Senior & Junior)Statewide (Category No.457/2010) in Higher Secondary Education/Vocational Higher Secondary Education Department;_ - _b) direct the respondent to permit the applicants to appear for the oral interview scheduled by the respondent with respect to the post of Higher Secondary School Teacher-Mathematics (Senior & Junior)-Statewide (Category No.457/2010) in Higher Secondary Education/Vocational Higher Secondary Education Department without looking into Annexure-A3 notification;”_ 4. The original applicants are candidates, who have applied for selection and appointment to the post of Higher Secondary School (HSS) Teacher (Mathematics) (Senior & O.P.(KAT) No. 34 of 2015 4 Junior) and Non Vocational Teacher (Mathematics) (Senior & Junior) pursuant to the selection notification issued by the Public Service Commission and as published in the gazette dated 31.12.2010 as category No.457/2010 and the last date for submission of application in that regard was 16.08.2011. Later, written examination was conducted by the PSC for the abovesaid selection on 02.02.2013 and the short list for the abovesaid selection was also drawn up by the PSC on 09.04.2014. The PSC has issued the impugned Anx.A3 order dated 09.04.2014 ordering that the candidatures of the applicants stand rejected on the ground that ' _water mark is not clear in the identification certificate_ '. Hence, the applicants were not allowed to take part in the selection process which impelled them to approach the Tribunal by filing the instant original application, which was admitted by the Tribunal on 16.05.2014. When the matter was taken up for consideration before the Tribunal, on 13.08.2014, the Tribunal has taken note of the factual aspects stated by the PSC that they had taken a general decision on 01.04.2014, whereby they have decided not to insist for water mark in the identification certificate. O.P.(KAT) No. 34 of 2015 5 Proceeding on the premise that the said decision taken by the PSC on 1.4.2014 would also enure to the benefit of the original applicants, who had participated in the selection process pursuant to the abovesaid selection notification issued much prior to the said decision, the Tribunal has declared as per the impugned Ext.P2 final order dated 13.08.2014 in the above O.A. that the applicants are therefore, entitled to succeed. Accordingly, it was ordered that the verification of certificates and interview of the applicants conducted by the PSC in pursuance of the interim order dated 16.05.2014 issued by the Tribunal at the stage of admitting the O.A., shall be treated as final and that their case may be considered for inclusion in the rank list on regular basis, provided they are otherwise eligible for the same. 5. The operative portion of the directions given by the Tribunal on internal pages 3 & 4 of Ext.P2 final order which reads as follows (see page Nos.36 & 37 of this paper book):- _“4. We heard the learned Standing Counsel for the P.S.C, who submitted that with effect from 01.04.2014 the P.S.C has decided not to insist for the watermark in the identification certificate. In view of the above decision of the P.S.C, the applicants are entitled to succeed. Accordingly, the verification of the certificates and the interview of the applicants, pursuant to the interim order passed by the Tribunal, shall be treated as regular and they shall be considered_ O.P.(KAT) No. 34 of 2015 6 _for inclusion in the ranked list on a regular basis, provided they are otherwise eligible for the same. The O.A. is disposed of as above.”_ 6. Now, it is submitted by the learned Standing Counsel for the PSC that the aforesaid decision taken by the Commission on 01.04.2014 was a general decision rendered, whereby it was decided not to insist for water mark in the identification certificates and the said decision is enforceable only on a prospective basis and hence the same will not have any impact on the selections conducted on the basis of selection notifications issued prior to 01.04.2014, the date on which the said decision was rendered. Hence the PSC seeks interdiction with the verdict of the Tribunal as per Ext.P2. 7. It is by now well established that if the selection authority or the rule making authority takes any decision after the issuance of the selection notification, ordinarily the same can have only prospective effect and the same cannot enure to the benefit of candidates, who have taken part in selections which have been initiated on the basis of the selection notifications issued prior to the day on which the decision is taken. As otherwise, it is now well established that the same would amount to changing the Rules of the games of the O.P.(KAT) No. 34 of 2015 7 selection after the commencement of the selection process, which will be against the elementary principles of reasonableness and fairness importable from Articles 14 & 16 of the Constitution of India. 8. Then the issue is as to whether the abovesaid condition which is otherwise applicable to the instant selection pursuant to the selection notification issued on 31.12.2010 in the instant case regarding the requirement of rejection of the application on the ground that water mark is not clear in the identification certificate, is a reasonable and fair prescription. 9. The issue in this regard as to the legal sanctity, enforceability and mandatory nature of such conditions issued in the selection process is no longer _res-integra_ and is covered by a series of decisions of this Court including the one rendered by the Full Bench of this Court in the case in _**Kerala Public Service Commission**_ v. _**Resmi**_ [2019 (5) KHC 875 (FB)], in para 31 thereof, it has been held that so long as the instructions were made known to the candidates properly, without any ambiguity and due clarity, it is the incumbent on the candidates to have abided by such instructions strictly and in the case of O.P.(KAT) No. 34 of 2015 8 defects committed despite clear instructions and not because of any technical errors in the computer server of the PSC or the like, which is beyond the control of the candidates, there cannot be any relaxation of the instructions and that the instructions cannot also be modified based on the convenience of the parties on the ground that the intention of stipulating the instruction could be achieved even otherwise as in the case of candidates, etc. It may be profitable to refer to para Nos.30 to 35 of the decision of the Full Bench of this Court in _**Reshmi's case supra**_ [2019 (5) KHC 875(FB)] ( _supra_ ), which read as follows:- _“30. A scanning of majority of the judgments cited by both sides would show that the consistent stand of this Court has been to the effect that applications shall be submitted as instructed. Roshni's case (supra) can only be considered as one rendered in the peculiar facts of the said case, where it was found that the date of photographing was just a few days prior to the six months' period. Apart from that in that case it was demonstrated that the website did not provide for part II of the notification, in which the instructions for uploading of photographs were alleged to have been published. The Division Bench found that no material was produced in the Writ Appeal also so as to reverse the finding of the Learned Single Judge. Therefore, the dictum in the said case has to be confined to the peculiar factual situation of that case._ _31. The contention that the judgment has diluted the dicta of the earlier decisions cannot be accepted. As long as the instructions were made known to the candidates properly, without any ambiguity and with due clarity, it was incumbent on the candidates to have abided by such instructions strictly. In the case of defects committed despite clear instructions and not because of any technical errors in the server of PSC or the like, which is beyond the control of the candidates, there cannot be any relaxation of the instructions. The instructions cannot also be modified to suit the convenience of parties on the ground that the intention of stipulating_ O.P.(KAT) No. 34 of 2015 9 _the instruction could be achieved even otherwise, as in the case of the candidates who had approached the KAT, where it is held that it was possible to identify the candidate even with the given photograph though it does not conform to the size prescribed. When all candidates, except a very few have produced the photographs of the prescribed size, it cannot be said that photographs uploaded without the due care and caution, that is expected of the candidates, who are eagerly waiting for employment, are liable to be accepted. Such cases do not justify any indulgence on the ground that the candidate could be identified and that the purpose of affixing a photograph with the prescribed size was achieved._ _32. The other question that arise is, once a candidate is permitted to appear for the examination, by the Chairman, whether the PSC is bound by the principle of promissory estoppel from rejecting his candidature, later. In order to attract the principle of promissory estoppel, one should have suffered some detriment acting upon a promise and altering his position. In this case, the candidates had approached the Chairman just before the date of the examination and the Chairman had permitted some of the candidates to appear for the examination. Such permission cannot be construed as a promise to regularise their candidature. It cannot also be said that such appearance of the candidates in the examination, has resulted in any prejudice to them or that it was detrimental to them. Such permission or the appearance in the examination also cannot cure the defects in the applications submitted by the candidates. In such circumstances, this Court would not direct the PSC to rank them, diluting the rigor of the instructions._ _33. According to Black's Law Dictionary, 'Promissory estoppel' is an estoppel that arises when a promise is made by the promisor with the intention to induce an action or forbearance of a definite and substantial character on the part of promisee, and where it does induce such action or forbearance, such promise would be binding if justice can be avoided only by enforcement of such promise._ _34. As long as the Chairman or PSC does not find that rejection of application was not proper and takes a decision to accept the candidature, it cannot be said that Article 226 could be invoked against the rejection merely on the ground that the Chairman had granted permission to a candidate to appear for the examination. In other words as long as there is no provision in the rules or regulations issued by the PSC providing that, once a candidate is allowed to appear for the examination by the Chairman, he/she would be treated as regular, no relief could be granted to the candidate, as claimed._ _35. The principle of promissory estoppel has come up for consideration in innumerable judgments before the Apex Court. (see Union of India v. Indo Afghan Agencies Ltd., Century Spg. & Mfg. Co. Ltd. v. Ulhasnagar Municipal Council, Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., Jit Ram Shiv Kumar v. State of Haryana, Union of Inda v. Godfrey Philips India Ltd., Indian_ O.P.(KAT) No. 34 of 2015 10 _Express Newspapers (Bom) (P) Ltd. v. Union of India, Pournami Oil Mills v. State of Kerala, Shri Bakul Oil Industries v. State of Gujarat, Delhi Cloth and General Mills Ltd. v. Union of India, Asstt. CCT v. Dharmendara Trading Co., Amrit Banaspati Co. Ltd. v. State of Punjab and Union of India v. Hindustan Development Corpn., State of H.P. v. Ganesh Wood Products, Kasinka Trading v. Union of India, Shrijee Sales Corpn. v. Union of India, Pawan Alloys & Casting (P) Ltd. v. U.P.SEB, Ashok Kumar Maheshwari v. State of U.P., Sharma Transport v. Govt. of A.P., State of Orissa v. Mangalam Timber Products Ltd., State of Punjab v. Nestle India Ltd., Bannari Amman Sugars Ltd. v. CTO, M.P. Mathur v. D.T.C. and Others, Kusumam Hotels (P) Ltd. v. Kerala SEB, Monnet Ispat & Energy Ltd. v. Union of India.”_ 10. After due consideration of the matter, we are of the view that the general decision taken by the PSC on 01.04.2014 deciding not to insist for water mark in the identification certificate, can only affect selections conducted on the basis of selection notifications issued on or after 01.04.2014 and the same cannot have any application to the instant selection which is governed by the terms and conditions of the selection notification issued on 31.12.2010, in which case admittedly the said restriction and condition was imposed. Going by the dictum laid down by the Full Bench in _**Reshmi**_ 's case _supra_ and other decisions of this Court, so long as such a condition is made known to the candidate without any ambiguity, the said condition will have to be complied with by the candidates and deviating therefrom is not a permissible option. Accordingly, we are of the view that the verdict of the Tribunal would require O.P.(KAT) No. 34 of 2015 11 ## interdiction as it has held otherwise. 11. Accordingly, the impugned Ext.P2 final order dated 13.08.2014 rendered by the KAT, Ernakulam Bench will set aside and the O.A. (Ekm) No.242/2014 will stand dismissed. With these observations and directions the original petition will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- skk/09032020 **K. BABU, JUDGE** O.P.(KAT) No. 34 of 2015 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE O.A (EKM) 242 OF 2014 ALONG WITH ANNEXURES** **EXHIBIT P2** **TRUE COPY OF THE ORDER IN O.A (EKM) 242 OF 2014 DATED 13/08/2014.** **ANNEXURE A1 TRUE COPY OF THE ADMISSION TICKET IN FAVOUR OF THE 2ND RESPONDENT. ANNEXURE A2 TRUE COPY OF THE NOTIFICATION DATED 09/04/2014 ISSUED BY THE RESPONDENT.** **ANNEXURE A3 TRUE COPY OF THE NOTIFICATION NO.ER VIII.6064/13/EW DATED 09/04/2014 ISSUED BY THE RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL**