OP(KAT) Nos. 53-56 of 2018

## **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 / 16TH KARTHIKA, 1940** ## **OP(KAT).No. 53 of 2018** **ORDER IN OA 1659/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 31-10-2017** ## **PETITIONER/RESPONDENT:** **THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION P.S.C OFFICE, PATTOM P.O., THIRUVANANTHAPURAM- 695 004.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENT/APPLICANT:** **RADHA.S** **D/O.BHAGYALAKSHMI, SERAMBI,MEENAKSHIPURAM POST, CHITTOOR TALUK,PALAKKAD, PIN-678 533, NOW RESIDING AT ADDITIONAL WOMEN'S HOSTEL, UNIVERSITY OF KERALA, MARIYAVATTOM CAMPUS, THIRUVANANTHAPURAM, KERALA695 581.** **BY ADV. SRI.S.K.ADHITHYAN** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 7.11.2018, ALONG WITH OP(KAT).54/2018, OP(KAT).55/2018, OP(KAT).56/2018, THE COURT ON 18.01.2019 PASSED THE FOLLOWING:** O.P.(KAT) Nos.53, 54, 55 & 56/2018 2 ## **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 / 16TH KARTHIKA, 1940** **OP(KAT).No. 54 of 2018** **ORDER IN OA 1990/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 19-09-2017** **PETITIONER/1ST RESPONDENT:** **THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION PATTOM P.O, THIRUVANANTHAPURAM - 695 004.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENTS/APPLICANT & 2ND RESPONDENT:** **1 LAKSHMANAN.K POOLAKKAD HOUSE, ELAPPULLY P.O, PETTA, PALAKKAD - 678 622.(MOB-9447924922) 2 THE GOVERNMENT OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **BY ADVS. SRI.S.K.ADHITHYAN DR.K.P.SATHEESAN (SR.) SRI.K.SUDHINKUMAR SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.P.MOHANDAS (ERNAKULAM) SRI.SABU PULLAN SRI.S.VIBHEESHANAN** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 7.11.2018, ALONG WITH OP(KAT).53/2018, OP(KAT).55/2018, OP(KAT).56/2018, THE COURT ON 18.01.2019 PASSED THE FOLLOWING:** O.P.(KAT) Nos.53, 54, 55 & 56/2018 3 ## **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 / 16TH KARTHIKA, 1940** **OP(KAT).No. 55 of 2018** **THE ORDER IN OA 2214/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 19-09-2017** ## **PETITIONER/RESPONDENT NO.3:** **THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, P. S. C. OFFICE, PATTOM P.O., THIRUVANANTHAPURAM-695004.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENTS/APPLICANT & RESPONDENTS 1 & 2:** **1 LAKSHMI C, AGED 26 YEARS, W/O. DARSHAN LAL M. NAIR,'PULARI' ANRA 101, AMALA BHAVAN ROAD, KADAVANTHRA, ERNAKULAM, KOCHI-682020 (PHONE 9447378314). 2 STATE OF KERALA REPRESENTED BY THE SECRETARY, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001. 3 DIRECTOR OF COLLEGIATE EDUCATION DIRECTORATE OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM-695033. BY ADVS. SRI.S.K.ADHITHYAN DR.K.P.SATHEESAN (SR.) SRI.K.SUDHINKUMAR SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 7.11.2018, ALONG WITH OP(KAT).53/2018, OP(KAT).54/2018, OP(KAT).56/2018, THE COURT ON 18.01.2019 PASSED THE FOLLOWING:** O.P.(KAT) Nos.53, 54, 55 & 56/2018 4 ## **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 / 16TH KARTHIKA, 1940** **OP(KAT).No. 56 of 2018** **ORDER IN OA 2485/2016 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 06-11-2017** **PETITIONER/1ST RESPONDENT:** **THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM P.O., THIRUVANANTHAPURAM - 695 004.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **RESPONDENTS/APPLICANT & RESPONDENTS 2 & 3:** **1 BABITHA S., D/O. PODIYAPPAN, AGED 41 YEARS, 'CHITHIRA', T.C.38/1773, KAILASANAGAR KNR 95, POOJAPPURA, THIRUVANANTHAPURAM - 695 012.** **2 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3 DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 033. BY ADVS. SRI.T.P.DEYANANTHAN SRI.A.V.RAMAKRISHNA PANICKER SRI.S.KRISHNALAL** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 7.11.2018, ALONG WITH OP(KAT).53/2018, OP(KAT).54/2018, OP(KAT).55/2018, THE COURT ON 18.01.2019 PASSED THE FOLLOWING:** O.P.(KAT) Nos.53, 54, 55 & 56/2018 5 **'CR'** ## **C.T.RAVIKUMAR & V.G.ARUN, JJ.** --------------------------------------------O.P.KAT Nos.53, 54, 55 & 56 of 2018 ---------------------------------------------Dated this the 18[th] day of January, 2019 ## **JUDGMENT** ## V.G.ARUN, J. These original petitions are being considered together, since the issue to be considered is common, though decided under different orders of the Kerala Administrative Tribunal. O.P.KAT No.53 of 2018 arises from the order of the Kerala Administrative Tribunal in O.A.No.1659 of 2015. O.P.KAT No.54 of 2018 from the order on O.A.No.1990 of 2015, O.P.KAT No.55 of 2018 from O.A.No.2214 of 2015 and O.P.KAT No.56 of 2018 from order on O.A.No.2485 of 2016. Out of the four cases, O.A.Nos.1990 and 2214 of 2015 were decided by the Tribunal under a common order. For the O.P.(KAT) Nos.53, 54, 55 & 56/2018 6 sake of convenience, the parties are described as per their status in the original applications. 2. The applicants before the Tribunal, the party respondents in these original petitions, had submitted applications seeking appointment to the post of Lecturer in various subjects under the Kerala Collegiate Education Department, notified by the Public Service Commission as per Gazette notification dated 30.11.2012, wherein the last date for submission of application was fixed as 2.1.2013. The qualification prescribed under the notification are as follows: “1) Masters Degree in the subject concerned with not less than 55% marks or its equivalent and good academic record. 2) Must have passed a comprehensive test in the subject concerned specifically conducted for the purpose by UGC or by any agency duly constituted by the State Government in this behalf.” O.P.(KAT) Nos.53, 54, 55 & 56/2018 7 All the applicants have the prescribed qualification of Masters Degree and have acquired NET qualification, which is a comprehensive test in the subject concerned specifically conducted for the purpose by the UGC. Even though the applicants had the requisite qualifications, they were unable to upload their NET qualification, allegedly due to technical glitch in the PSC Website. Though the applicants intimated the PSC about the difficulty experienced by them in uploading their NET qualification and uploaded the qualification later, their applications were rejected at various stages of the selection process stating the reason that the NET qualification was claimed subsequently. The original applications were therefore filed challenging the rejection and for a direction to the Public Service Commission to allow the applicants to participate in the selection procedure for the post to which they had submitted applications seeking O.P.(KAT) Nos.53, 54, 55 & 56/2018 8 appointment. 3. The main contention urged by the applicants was that, even though they had submitted the NET qualification at the time of one time registration, the same was not uploaded. Therefore, the request made by the applicants for accepting their NET qualification cannot be treated as a subsequent claim. 4. The Public Service Commission had opposed the original applications contending that even though the last date for receipt of application was 2.1.2013, the applicants had uploaded their NET qualification only subsequently. The PSC relied on paragraphs 15 and 16 of the general conditions in the notification, which reads as under: “15. Candidates are required to acquaint themselves with the instructions given in the notification, General conditions and Website for filling up the application form. They will not get an opportunity to rectify any mistake in the O.P.(KAT) Nos.53, 54, 55 & 56/2018 9 application later. 16. Claims made subsequent to the application will not be considered under any circumstances. Proof submitted without proper claim in the application also will not be considered.” It was therefore contended that since the applicants were themselves aware of the fact that they had not entered their NET qualification as on the last date of receipt of application, the action of the PSC in having rejected the applications cannot be found fault with. In one of the original applications, the PSC had filed an additional reply statement stating that, the Commission had, as per decision No.14 dated 26.12.2016, decided to admit the applications ignoring the subsequent claim if the qualification could be proved at the time of certificate verification, subject to the other criteria for selection being satisfied. It was also stated that the benefit of decision No.14 dated 26.12.2016 cannot be extended to the candidates who had applied for the post of O.P.(KAT) Nos.53, 54, 55 & 56/2018 10 Lecturer in Commerce, Chemistry, Psychology and Mathematics, since the interview for the said subjects was completed before decision No.14 was taken by the Commission. The contention of the Public Service Commission, based on notification No.14 dated 26.12.2016, was relied on by the applicants to point out that the decision itself is proof of the fact that there were technical flaws in the PSC Website, making it impossible for the applicants to upload their NET qualification. It was contended that curtailment of the benefit of decision No.14 to the applicants, on the ground that the interview for appointment to the subject for which they had applied was over, while granting the benefit to the candidates of other subjects, amounted to unreasonable classification and discrimination. 5. The Tribunal, after detailed consideration of all relevant aspects and the arguments advanced, came to the O.P.(KAT) Nos.53, 54, 55 & 56/2018 11 conclusion that the Public Service Commission having decided to reconsider the applications of candidates possessing the required qualification before the last date of submission of the application, subject to such qualification being proved at the time of certificate verification, the applicants would also be entitled to the benefit of such consideration. The Tribunal had also taken note of the fact that even though the interview for the post of Lecturer in English was conducted before taking decision No.14, the benefit of the decision was subsequently extended to the candidates who had applied for the post of Lecturer in English. 6. In all cases except one, the Tribunal passed interim orders permitting the applicants to participate in the selection process and directing their names to be included in the select list. In the case of the applicant in O.A.No.1990 of O.P.(KAT) Nos.53, 54, 55 & 56/2018 12 2015 (1[st] respondent in O.P.KAT No.54 of 2018), since no interim order was issued, permitting the applicant to participate in the selection process, the Tribunal directed the PSC to arrange the conduct of interview of that applicant within a period of two months and to include him in the rank list based on his performance in the selection process. After final hearing of the original applications, the Tribunal went on to hold that since the Commission had decided to consider the candidature of those candidates, who could prove their qualification at the time of verification of the certificate, the applicants, who are similarly situated, are also entitled to be included in the rank list based on their performance in the selection process. 7. In these original petitions, the PSC has assailed the findings of the Tribunal mainly on the ground that reliance could not have been placed on decision No.14 dated O.P.(KAT) Nos.53, 54, 55 & 56/2018 13 26.12.2016 of the Commission, for granting reliefs to the applicants. It is contended that decision No.14 relates to claims made as equivalent/higher to required qualification, that too before the last date for receipt of application and that the decision was not applicable to the posts for which the applicants had applied, since the interview for those posts were over before decision No.14 was taken by the Commission. It is also contended that the claim of the applicants that they were unable to upload their NET qualification due to technical glitches in the website of the Commission is wrong. Placing reliance on paragraphs 15 and 16 of the general conditions of the notification, it is contended that it was the duty of the candidate to have ensured that the qualification is uploaded before the last date for submission of application and that the Tribunal should not have granted any concession in that regard. O.P.(KAT) Nos.53, 54, 55 & 56/2018 14 8. By order dated 8.2.2018, this Court had directed the learned Standing Counsel to produce the relevant files bearing No.GRIIC (2)2279/16/GW, wherein decision No.14 dated 26.12.2016 was taken and file No.GRIIB (3) 1138/13/GW, wherein an order was passed by the Chairman of the Commission on 29.3.2017. Accordingly, the files were produced and we have perused the same. Page 3 of file No. GRIIC (2)2279/16/GW is a note submitted by the Joint Secretary (Government Recruitment) of the Commission, regarding subsequent claims of candidates, for consideration in the meeting of the Commission to be held on 26.12.2016. In the note, it was pointed out that after the introduction of the online application process from 1.1.2012 onwards, there was an omission to include the declaration software which provided an opportunity for the candidate to declare himself to be having all the requisite qualification and that such O.P.(KAT) Nos.53, 54, 55 & 56/2018 15 declaration software was introduced only in June, 2016. It is therefore pointed out that in the applications submitted during the period from 1.1.2012 to June, 2016, a technical flaw had crept in, in the form of an entry to the effect, 'not claimed'. It was suggested that with respect to the posts notified between 1.1.2012 and June 2016, the short lists of which have not been published, the applications could be accepted if, at the time of certificate verification, it is proved that the candidate had acquired the qualification before the last date for submission of application and that the candidate had uploaded such qualification in any of the links to the profile before the last date. The Commission had taken decision No.14 dated 26.12.2016, after considering the note. Decision No.14 has been produced as additional document in these original petitions. 9. The proceedings dated 29.03.2007 of File No.GR II O.P.(KAT) Nos.53, 54, 55 & 56/2018 16 C (2) 2279/16/GW would reveal that, as far as applicants to the post of Lecturer in English are concerned, the Commission had decided to give effect to the interim orders of the Tribunal by interviewing those candidates and, if found eligible, to include those candidates in the rank list and to report compliance to the Tribunal with a request to close the original applications. These proceedings, which was approved by the Chairman of the Commission, was subsequent to the conduct of interview to the post of Lecturer in English. In such circumstances, can the PSC contend that decision No.14 is not applicable insofar as the applicants are concerned, since the interview for appointment with respect to their subject was conducted prior to decision No.14. The answer can only be in the negative since any decision to the contrary would result in unreasonable classification of the applicants resulting in O.P.(KAT) Nos.53, 54, 55 & 56/2018 17 hostile discrimination, in violation of the principle of equality propounded in Article 14 of the Constitution of India. There is yet another reason for us to refuse to accept the explanation offered by the Public Service Commission. From the proceedings which culminated in decision No.14, it is evident that the failure to upload NET qualification along with their applications was not attributable to the candidates. In such circumstances, it would be unjust and arbitrary to reject the applications submitted by those candidates, for the only reason that their NET qualification was not uploaded. In this context, it would be appropriate to refer to the decision of the Apex Court in **Union of India v. Sadhana Khanna [(2008) 1 SCC 720]** , wherein it was held that the mistake committed by the department cannot be permitted to recoil on the employee. Adopting the principle laid down in the aforementioned decision, it has to be held O.P.(KAT) Nos.53, 54, 55 & 56/2018 18 that the error in the software of the Public Service Commission cannot be taken as a reason to reject the applications of the candidates. 10. As far as the question of reasonableness of classification is concerned, we are guided by the following decisions of the Apex Court. The Apex Court in **State of Kerala v. N.M.Thomas [(1976) 2 SCC 310]** considered the impact of discrimination on the equality principle enunciated under Article 14 of the Constitution and held as follows: “Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to O.P.(KAT) Nos.53, 54, 55 & 56/2018 19 the object sought to be achieved.” Again in **Deepak Sibal and others v. Punjab University and another [(1989) 2 SCC 145]** , it was observed by the Honourable Supreme Court as under: “In considering the reasonableness of classification from the point of view of Article 14 of the Constitution, the Court has also to consider the objective of such classification. If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable.” 11. A reading of the decisions of the Honourable Supreme Court starting from **Budhan Choudhary v. State of Bihar [AIR 1955 SC 191]** to **Shayara Bano and others v. Union of India and others [(2017) 9 SCC 1]** shows that, for the of the test of purpose passing permissible classification two conditions must be fulfilled, viz; i) that, the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and ii) O.P.(KAT) Nos.53, 54, 55 & 56/2018 20 that the differentia must have a rational relation to the object sought to be achieved by the statute in question. Therefore, it has to be considered as to whether the rejection of applications submitted by the applicants for the reason that the NET qualification was not uploaded along with their applications and that the interview for the purpose of appointment to the subjects for which the applications had been submitted was over by the time decision No.14 was taken by the Commission, while at the same time accepting the application of certain other similarly situated candidates, would pass the twin test of permissible reasonableness. 12. The reason for rejecting the applications is that the applicants had claimed the NET qualification subsequently. In the light of decision No.14 and the note available in File No.GRIIC (2)2279/16/GW, there cannot be any doubt that, failure to upload the NET qualification was O.P.(KAT) Nos.53, 54, 55 & 56/2018 21 not for reasons attributable to the applicants. The Commission having decided to process the applications of other candidates, who had also uploaded their NET qualification subsequently, refusal to accept the applications of the applicants would amount to discrimination. The explanation offered by the Commission that, in the case of those candidates whose applications were subsequently accepted, the interview was yet to be conducted, whereas in the case of the applicants, the interview had already been conducted, cannot also be accepted. The reason being that, in the case of appointment to the post of Lecturer in English, the applications of some of the candidates were accepted and processed, resulting in their inclusion in the rank list, in spite of the interview having been conducted. Even otherwise, the classification of applicants on the basis of the conduct of interview, prior and subsequent to decision No.14 O.P.(KAT) Nos.53, 54, 55 & 56/2018 22 of the Commission, has no rationale or nexus with the objective that is sought to be achieved by such classification. Hence, the reasoning adopted by the PSC for such classification and consequential rejection of applications, does not satisfy the twin test of reasonableness. Therefore, there is no valid ground to interfere with the findings of the Tribunal and resultantly, the original petitions are dismissed. Sd/- **C.T.RAVIKUMAR** Sd/- **V.G.ARUN JUDGE** **JUDGE** Scl/