OP(KAT).144/2017: Anupama S. Nair and Sree Shilpa A.S. v. Kerala Public Service Commission

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 21ST DAY OF AUGUST 2018 / 30TH SRAVANA, 1940** ## **OP(KAT).No. 144 of 2017** **OA(EKM) 1460/2016 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 & 2** **1 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM,THIRUVANANTHAPURAM, KERALA-695004** **2 THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION DISTRICT OFFICE, THIRUVANANTHAPURAM, KERALA-686607** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENTS/APPLICANTS:** **1 ANUPAMA S. NAIR AGED 31 YEARS, W/O.SREEJITH P.S.,VELLUVILAKATHU VEEDU, CHERUVICKAL, SREEKARYAM P.O., THIRUVANANTHAPURAM,KERALA-695017** **2 SREE SHILPA A.S. AGED 22 YEARS, D/O.AJITHAKUMARI, SREEMANGALAM, K.P. V/232A, V.P.THAMPY ROAD,KUDAPPANAKUNNU, THIRUVANANTHAPURAM, KERALA-695023** **BY ADVS. KUM.A.ARUNA KUM.THULASI K. RAJ SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 21.08.2018, ALONG WITH OP(KAT) NOS.221 & 223 OF 2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP(KAT).144, 221, 223/17** 2 ## JUDGMENT Ravikumar, J 1.The captioned Original Petitions arise from a common order passed by the Kerala Administrative Tribunal dated 7.12.2016 in OA(EKM). Nos 1460, 1483 and 1299 of 2016. The Kerala Public Service Commission (for short 'the PSC') is the common petitioner in all the captioned original petitions. In O.P.(KAT).No.144/2017 it is joined by its District Officer, Thiruvananthapuram and in O.P.(KAT).No.221/2017 is joined by its District Officer, Pathanamthitta, as petitioners. PSC had invited applications for selection to the post of Lower Division Typist in various Departments as category No.388/2014 through Gazette notification dated 10.9.2014 and to the post of Clerk Typist/Typist Clerk as category No.45/2015 through Gazette notification dated 28.3.2015. The applicants/the respondents herein had applied for one or both the posts and **OP(KAT).144, 221, 223/17** **==> picture [7 x 9] intentionally omitted <==** obviously they had applied only in one of the districts in tune with the conditions in the notifications. Same qualifications were prescribed for both the posts as per the said notifications and they were as follows :- (i). pass in Plus 2 or its equivalent (ii). Lower grade certificate in KGTE Malayalam Typewriting or its equivalent (iii). Lower grade certificate in KGTE English Typewriting and Computer Word processing or its equivalent. 2.The respondents herein filed the aforementioned Original Applications on being aggrieved by their non-inclusion in the ranked list concerned published by the PSC for the post of LD Typist (category No.388/2014) and the ranked list concerned for the post of Clerk Typist/Typist Clerk (category No.45/2015) or in any one of them, as the case may be. Obviously they were not included in the ranked lists despite their participation in the selection process pursuant to the rejection of their applications on the **OP(KAT).144, 221, 223/17** 4 ground that they did not possess the required qualifications as on the date of their applications. As noticed hereinbefore, going by the aforesaid notifications, possession of Lower grade certificate in KGTE Malayalam is also one of the prescribed qualifications and all the respondents herein/the applicants were not in possession of the certificate of KGTE Malayalam Typewriting as on the date of the notification as also on the last date fixed for receipt of applications. It is citing the said reason that they were found ineligible to be included in the ranked list/lists and consequently excluded from the aforementioned ranked list/lists published by the PSC. The said lists are produced in all the Original Petitions. The Original Applications were filed mainly with a prayer to quash the aforementioned ranked list/lists to the extent they did not contain the names of the applicants. In other words, virtually they sought for declaration that they are entitled to be included in those ranked list/lists, as the case may be. **OP(KAT).144, 221, 223/17** 5 The Tribunal had considered the rival contentions and ultimately upheld them. As a necessary sequel, a direction was issued to the first petitioner, viz, the PSC to reconsider the issue in the light of the declaration made by the Tribunal that all the applicants are eligible and entitled to be considered for selection to the post notified in the light of the clarification issued by the Controller of Examinations. PSC was also directed to afford a further opportunity to the applicants and to verify whether the applicants had all the requisite qualifications including KGTE Malayalam Typewriting (Lower) as on the date of their applications. Steps in that regard was directed to be taken by the PSC within a period of two months from the date of receipt of a copy of the orders. It is on being aggrieved by such directions following the declaration that the PSC has filed the above Original Petitions. 3.We have heard the learned Standing Counsel appearing for the PSC as also the learned counsel 6 ## **OP(KAT).144, 221, 223/17** appearing for the respondents who were the applicants before the Tribunal. - 4.When the matters are taken up for consideration, the learned counsel for the petitioners submitted that as against the orders in some of the Original Applications disposed of by the very same impugned common order dated 7.12.2016 viz, in O.A.Nos.1461, 1462, 1457, 1471, 1473 and 1484 of 2016 Original Petitions were filed and this Court had allowed them as per common judgment on 12.6.2018. - 5.In the light of the said submission we have carefully gone through the said common judgment dated 12.6.2018. Evidently, after a careful scanning of the contentions raised therein akin to the contentions raised by the petitioners herein, this Court had entered into a finding that the respondents/applicants before the Tribunal were not having the prescribed qualifications inasmuch as they were not in **OP(KAT).144, 221, 223/17** 7 possession o the certificate of KGTE Malayalam Typewriting as on the date of notification as also on the last date fixed for receipt of applications. Therefore the Tribunal had erred in holding that the respondents have satisfied the qualifications stipulated under Annexures-A1 and A2 notifications. This Court found that the respondents in the Original Petitions, viz., the applicants in the OAs concerned had joined a combined course in Malayalam Typewriting and Computer Word Processing and therefore, obtaining marks required for a pass in Malayalam Typewriting would and could not fetch them the certificate till they pass Computer Word Processing, as well. Paragraph 14 of the said common judgment dated 12.6.2018 would reveal that the Commissioner of Examinations had issued a communication dated 6.8.2016 to the PSC/the common petitioner herein clearly mentioning that the syllabus for the certificate course was altered with effect form January, 2002. Computer Word processing is also made a part of the KGTE **OP(KAT).144, 221, 223/17** 8 course for Malayalam Typewriting. The impugned judgment would also reveal that the contentions raised by the petitioners therein relying on the decision of the Apex Court in Charles K.Scaria v. Dr.C.Mathew ( 1980 (2) SCC 752) and Dolly Chhanda v. Chairman, Jee and Others (2005 (9) SCC 779) were also taken into consideration by this Court and it is thereafter that the said Original Petitions filed by the PSC were allowed. The learned counsel appearing for the respondents in the above captioned Original Petitions also admitted the fact that similar contentions raised by similarly situated persons were repelled by this court and consequently some Original Petitions arising from the Original Applications, disposed of by the common order dated 7.12.2016, were interfered by this court as per the common judgment dated 12.6.2018. - 6.The learned counsel for the respondents attempted to canvass the position that the fact that all the respondents had passed Malayalam Typewriting **OP(KAT).144, 221, 223/17** 9 in KGTE is revealed from the list issued by the Controller of Examinations. It is the contention that though they had passed the Malayalam Typewriting, they were not issued with the requisite certificate only because by that time they had not passed 'Computer Word Processing'. At the same time, it is pertinent to note that the respondents themselves would admit the fact that they had joined a combined course in KGTE Malayalamm Typewriting 'Computer Word processing'. The respondents got no case that Lower Grade certificate in KGTE Malayalam Typewriting is not one of the prescribed qualifications and admittedly, they were not given rather, they could not have been given a certificate showing pass in KGTE Malayalam Typewriting before passing 'Computer Word Processing' after January, 2002. When they joined such a combined course merely because they had obtained pass mark in Malayalam Typewriting Lower that by itself cannot be a reason to hold that they are qualified candidates in terms of 10 ## **OP(KAT).144, 221, 223/17** Annexures-A1 and A2 notifications. The qualifications prescribed, as extracted hereinbefore, would reveal that in order to be a qualified candidate one should also possess certificate in KGTE Malayalam Typewriting Lower on the date of the notifications or at any rate on the lat date of receipt of the applications. As a matter of fact the position that Computer Word Processing is also included along with Malayalam Typewriting in the KGTE course is evident from Ext.P3 dated 6.8.2016, referred as such in OP(KAT).144/2017. In fact, it is the communication that was referred to in the common judgment dated 12.6.2018 passed by this Court. The contention is that in the notification the word 'Computer Word Processing' is absent in condition No.2 and under condition No.2, what is prescribed is only Lower grade certificate in KGTE Malayalam Typewriting. However, a perusal of the notifications would make it clear that what is prescribed as a qualification is not a pass in KGTE Malayalam Typewriting Lower. Going by the **OP(KAT).144, 221, 223/17** 11 notifications an applicant should be a certificate holder in KGTE Malayalam Typewriting lower as well. In such circumstances when it is evident that they did not possess the certificate issued by the KGTE in Malayalam Typewriting as on the last date of receipt of application, they could not be said to be qualified candidates for appointment to the posts notified by the PSC for selection. This issue was pointedly considered by the Division Bench in the common judgment dated 12.6.2018. We do not find any reason for not concurring with the conclusions and findings in the said judgment dated 12.6.2018. 7. Charles K.Scaria 's case and Dolly Chhanda 's case (supra) would reveal that they were cases where the candidates concerned, in a bid to continue their studies, were seeking admission to Post Graduate courses. The Hon'ble Apex Court held that the possession of mark list showing that they had passed the basic qualifications would be sufficient for the said purpose. In the case on **OP(KAT).144, 221, 223/17** 12 hand, the petitioners are applicants for appointment to the posts of Lower Division Typist or Clerk Typist/Typist Clerk notified by the PSC. Possession of a certificate in Lower Grade Malayalam Typewriting is also prescribed as one of the qualifications. Needless to say that in such circumstances, a person not in possession must be there by the last date of receipt of the application. There is no case for any of the petitioners that they possessed such certificates. The common judgment dated 12.6.2018 would reveal that all such aspects were considered by this Court and ultimately found that owing to the failure to possess the certificate, showing a pass in Lower Grade Typewriting in KGTE, applicants who were respondents in the said Original Petitions ought not have been found as qualified candidates by the Tribunal. In other words, assailing such reasons this Court held that the Tribunal had erred in holding that the respondents therein are qualified candidates and consequently held that **OP(KAT).144, 221, 223/17** **==> picture [12 x 9] intentionally omitted <==** the Tribunal ought not have issued a direction to consider for appointment treating them as qualified candidates. In the said circumstances this court allowed the Original Petitions and the impugned order passed by the Tribunal under Section 7.12.2016 in all the aforesaid cases were set aside. 8.The Division Bench held in the aforesaid cases that being persons who possessed the certificate prescribed as a qualification in the notification concerned, the Tribunal had committed an error in holding that they are qualified candidates. There is no dispute with respect to the fact that the captioned Original Petitions, arising from the Original Applications mentioned hereinbefore, were also disposed of along with the other Original Applications from which the Original Petitions arise and which were allowed by this Court as per the common judgment dated 12.6.2018. In such circumstances, it is evident that since the issues involved in these cases are already **OP(KAT).144, 221, 223/17** 14 decided in favour of the petitioners as per the common judgment dated 12.6.2018, we do not find any reason to disagree with the reasons given by the Division Bench in the said common judgment. In the aforesaid circumstances, the Original Petitions are also liable to be allowed. 9.The Original Petitions are allowed. The impugned order dated 7.12.2016 passed by the Kerala Administrative Tribunal in O.A(Ekm) Nos.1460, 1483 and 1299 of 2016 is set aside. ## C.T.RAVIKUMAR Judge Sd/- A.M.BABU Judge **OP(KAT).144, 221, 223/17** 15 ## **APPENDIX** ## **EXHIBITS/ANNEXURES** - **P1TRUE COPY OF THE OA(EKM)1460 OF 2016 WITH ANNEXURES** **P2TRUE COPY OF THE ORDER IN OA(EKM) 1460/2016 DATED 7.12.2016** - **P3TRUE COPY OF THE LETTER DATED 6.8.2016** **A1A COPY OF THE GAZETTE NOTIFICATION DATED 10.9.2014 PUBLISHED BY THE PSC** **A2A COPY OF THE GAZETTE NOTIFICATION DATED 28.3.2015 PUBLISHED BY THE PSC** - **A3A COPY OF THE MARL LIST OF APPLICANT NO.1** - **A4A COPY OF THE LETTER DATED 19.8.2016** - **A5A TRUE COPY OF THE MARK LIST OF APPLICANT NO.2.** - **A6A COPY OF THE LETTER DATED 3.8.2016** - **A7TRUE COPY OF THE RANKED LIST DATED 31.8.2016 FOR THE POST OF LD TYPIST** - **A8TRUE COPY OF THE RANKED LIST DATED 31.8.2016 FOR THE POST OF CLERK TYPIST/TYPIST CLERK** ## **True copy** **P.S.To Judge** **Mrcs/23.8.**