Prakash S. v. Kerala Public Service Commission and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 4173 of 2007(V) ------------------------- PETITIONER: ------------ PRAKASH.S., PURCHASE ASSISTANT, HEALTH TRANSPORT CENTRAL WORKSHOP, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. SRI.C.X.ANTONY BENEDICT RESPONDENTS: ------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. P.T.PADMALAL, INDIRALAYAM, PILATHARA P.O., KANNUR. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC GOVERNMENT PLEADER SRI. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4173 of 2007 ## **APPENDIX** ## PETITIONER'S EXHIBITS EXT.P1TRUE COPY OF THE GENERAL CONDITIONS ATTACHED TO THE GAXETTE NOTIFICATION DATED 2.11.04. - EXT.P2TRUE COPY OF the COMMUNICATION DATED 9.6.2005 OF THE FIRST RESPONDENT - EXT.P3TRUE COPY OF OTHE MEMO DATED 11.12.06 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER - EXT.P4TRUE COPY OF THE TOP PORTION OF EXT.P3 RETAINED BY THE PETITIONER DATED 11.12.06 - EXT.P5TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED TO THE PETITIONER BY THE 2ND RESPNDENT DATED 20.12.06 - EXT.P6TRUE COPY OF THE REPRESENTATION DATED 30.1.07 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT - EXT.P7TRUE COPY OF THE RANKED LIST PUBLISHED BY THE FIRST RESPONDENT DATED 22.1.2007 - EXT.P8TRUE COPY OF EXPERIENCE CERTIFICATE DATED 20.6.05 ISSUED TO THE PETITIONER (TRUE COPY) P. A TO JUDGE ## **V.GIRI, J** ------------------W.P.(C).4173/2007 -------------------Dated this the 20[th] day of February, 2008 ## **JUDGMENT** While working as Purchase Assistant in the Transport Wing of the Health Services Department, petitioner responded to a notification issued by the PSC inviting applications for the post of the State Health Transport Officer. Method of appointment to the said post is by direct recruitment. Petitioner submitted an application on 9.12.2004 and he thereafter, received Ext.P2 communication requiring him to produce the copy of the S.S.L.C Book to prove his date of birth, copy of the certificate evidencing possession of Mechanical Engineering Degree/Diploma and the copy of the certificate to prove experience. Petitioner was then called for an interview. Before that, the petitioner received Ext.P4 communication from the PSC on 14.12.2006, requiring him to submit a No Objection Certificate from the Head of his Office. According to the petitioner this requirement is on the basis of clause 20 of the General Conditions incorporated in Ext.P1 which reads as follows:- W.P.(C).4173/2007 2 **When a Government Servant is applying for a Post notified by the Kerala Public Service Commission:-** **A Government Servant employed in a Service under the Administrative Control of the Government of Kerala applying for a post in another Office or Department of the Government of Kerala shall obtain a receipt in the following form at the time of applying for the post from the Head of Office and shall produce the same to the Commission as and when called for.** 2. Apparently on 19.12.2006, he applied in that behalf to his Head of Office. But he was actually given such NOC as Ext.P5 only on 24.1.2007, though it is dated 20.12.2006. In the meanwhile, final rank list was published by the PSC as Ext.P7 on 22.1.2007. The same has been challenged in this writ petition. 3. Petitioner contends that firstly the requirement of NOC, in terms of the General Condition No.20, is not applicable to the case of the petitioner because he was not seeking an employment in another department of the W.P.(C).4173/2007 3 Government. He secondly contended that the PSC had given him liberty to produce the No Objection Certificate, Ext.P5 and that if that be so, then they should have waited till he was in a position to produce the certificate. According to the petitioner, though interview was held on 20.12.2006, the delay in the production of Ext.P5 NOC, cannot be attributed to him and therefore, PSC should be directed to take note of Ext.P5 and then include the petitioner at the appropriate place in the rank list. 4. PSC has filed two affidavits. In the first counter affidavit, the stand taken is to the effect that General Condition No.20 does not enable the petitioner to dispense with an NOC. It is further contended therein that at any rate, petitioner had agreed to produce the NOC from the Head of Office on or before 23.12.2006 but ultimately produced it only on 30.1.2007. 5. In the second counter affidavit filed by the Commission, a specific reference is made to Rule 2 (2)A of the Kerala Government Servants' application for posts W.P.(C).4173/2007 4 (Private employment and Government Service) Rules, 1958 (hereinafter referred to as the 'Rules”). As per Rule 2(2)A, an application to the PSC for appointment to any post notified by it may be presented in original to the PSC with a receipt signed by the Head of Office to the effect that he has received a copy of the application and that he will communicate his objections, if any, to the entertainment of the application. No such receipt accompanied by the petitioner's application. No such receipt, or NOC was produced at the stage of interview. It was not produced even on 23.12.2006. In the circumstances, petitioner could not be considered any further. 6. I heard learned counsel for the petitioner Mr.Elvin Peter, learned Standing Counsel for the PSC Mr.Alexander Thomas and the learned Government Pleader Mr.Nandakumar. 7. In so far as the petitioner's contention on the basis of General Condition No.20 is concerned, I find force in the submission that the said condition may really apply W.P.(C).4173/2007 5 as such only in the case of an application from a Government servant for a post in another Department. But I do not think it necessary to finally pronounce on this aspect. In my view, petitioner is confronted with Rule 2(2)A of the aforementioned Rules which reads as follows: **A Government Servant employed in a service under the Administrative control of the Government of Kerala applying for a post or for transfer to a post in another office or Department of the Government of Kerala shall submit his application through the Head of the Office in which he is working at the time of making the application:** **provided that an application to the Kerala Public Service Commission or to any of its District Offices for appointment to any post notified by it may be presented in original to the Kerala Public Service Commission or the District Office concerned as the case may be with a receipt signed by the Head of his Office that he has received a copy of the application and that he will communicate his objections, if any, to** W.P.(C).4173/2007 6 **the entertainment of the application within one month of the last date fixed for the receipt of applications. It will be the responsibility of the Head of the Office to inform the Commission or its District Office, as the case may be, either on his own motion or after taking orders of his superiors, whether objection is to be taken for entertaining the application. If such an objection is received by the Commission or its District Office, as the case may be, within one month of the last date fixed for the receipt of the application, the application shall be rejected. Otherwise, the application shall be admitted.** 8. There is no reason why the requirement to produce the receipt from the Head of Office along with the application, should not be treated as mandatory. At any rate, even if the PSC gives time to any candidate to produce such a receipt or an NOC as the case may be, that would purely be the discretion of the Commission. There is dispute in this case as to whether the Commissioner had allowed any specific time to the W.P.(C).4173/2007 7 petitioner to produce the NOC. But the Commission had given the petitioner time till 23.12.2006 to produce the certificate in the nature of Ext.P5. There is no rule or any other provision which would compell the Commissioner to give further time on a request made by the applicant. If that be so, petitioner cannot be heard to say that the Commission should have been waited for more than one month to enable the petitioner to produce Ext.P5. In the circumstances, I find no error in the stand taken by the PSC. Though the petitioner was subjected to an examination, he was not included in the rank list because his application was hit by Rule 2(2)A of the Rules. 9. Learned counsel for the petitioner submits that the view taken by this Court in **Shanthamma v. Public Service Commission (1982 KLT 786)** and **Kuriakose v. State of Kerala and Others (1984 KLT 925)** would show that it is always open to the Commission to exercise its discretion permitting the applicant to cure any defect which is of technical or venial nature. My be this is true. But there are two W.P.(C).4173/2007 8 facts which stand in the way of the petitioner. Firstly the statutory prescription as such does not admit of any residuary power of discretion with the PSC to relax any requirement. Secondly assuming that the Commission has power to permit an applicant to correct any defect of a technical or venial nature, in the present case, Commission had given the petitioner time upto 23.12.2006, to comply with the requirement of the Rule which otherwise is couched in mandatory terms. It requires every application for appointment submitted by the Government Servant, to be routed through his Head of Office thereby enabling the Head of Office to convey the objections if any, on his part to the entertainment of the application submitted by the person in question. In my view, Rule 2(2)A cannot be ignored even by the PSC. There is no issue in this case as to whether PSC had acted correctly in giving the applicant time upto 23.12.2006 for production of NOC and therefore, I refrain from making any comment on the same. I am certainly of the view that the Commission cannot be compelled to extend the time for production of a certificate or a receipt which should have in the first W.P.(C).4173/2007 9 instance, accompanied the application in terms of the Rules. 10. I am also in agreement with the submission made by Mr.Alexander Thomas that the principle laid down by this Court in **Rangaswamy v. P.S.C.** reported in **(1982 KLT 574)** and **Binimil K.G. v. K.P.S.C** reported in **(1997 (2) KLJ 477)** supports the stand taken by the PSC. The principles laid down by this Court in the aforementioned decisions is discernible from the following passage in the case of Binimil K.G. - **“The question to be considered is whether the Public Service Commission was justified in rejecting the application. Admittedly, the application was received subsequent to the last date for receipt of the application. That is a valid ground for rejection. Whether the peculiar circumstances of the case warrant condonation of such delay in submitting the application is a matter to be considered. The Public Service Commission is entrusted with the duty of conducting various departmental** W.P.(C).4173/2007 10 **examinations and also selection of candidates for appointment to various posts. They have to deal with large number of application and when they call notification inviting application, last date is fixed for receipt of such applications. Due to various reasons the candidates may not be in a position to send the application in time. But such delays are not condoned by the PSC. If they show any relaxation in such rules it would cause delay in processing application. Moreover, that would pave way to certain undue favouritism to some candidates. Laxity in one case will leave open the flood gate of requests to condone such irregularities or omissions.”** For all these reasons, I do not find any error in the stand taken by the Commission. Writ petition is bereft of merit and hence dismissed. **V.GIRI, Judge** mrcs