Riyaz Anvar M. et al. v. Kerala Public Service Commission & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933** **WP(C).No. 20461 of 2008(J)** **------------------------------------------** ## **PETITIONER(S):** **------------------------** **1. RIYAZ ANVAR.M, AGED 30 YEARS, S/O.ABOOBACKER, MANIYARAYIL HOUSE, MANKADA P.O, MALAPPURAM DISTRICT.** **2. MUHAMMED MUSTHAFA.K, AGED 28 YEARS, S/O.MOHAMMED T.K, 'TK HOUSE', BEACH ROAD, PADANNATHODI, P.O.POKKUNNU, CALICUT - 13.** **3. ARIFA.A, AGED 32 YEARS, W/O.UBAIS, PANANILATHU HOUSE, BEACH ROAD, PARAPPANANGADI P.O.** **4. AHRAF.K, KUYYADIYIL HOUS, PUNNASSERI.P.O NARIKUNI (VIA) CALICUT-673 585.** **BY ADV. DR.GEORGE ABRAHAM** **RESPONDENT(S):** - **----------------------------** **1. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM.** **2. SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM.** **3. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM.** **..2/-** **Kss** **..2...** ## **WPC.NO.20461/2008 J** **4. MUHAMMED BASHEER.U.K, URALAN KUNNUMMEL HOUSE, OMASSERY P.O, KODUVALLY (VIA), KOZHIKODE.** **5. AYOOB.A, ARANGIKKAL HOUSE, PANAMANNA P.O OTTAPALAM.** **6. ABDUL MUTHALIB.K, KUNNUMMAL HOUSE, ODOMBETTA, CHEMBRASSERY EAST P.O, TUVVUR (VIA), MALAPPURAM.** **7. MANSOOR.P.T, KOTTAPPURAM HOUSE, OTHAYI, PERAKAMANNA P.O, MALAPPURAM.** **R1 & R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R3 BY GOVERNMENT PLEADER SMT. NISHA BOSE R4 TO R7 BY ADVS. SRI.V.A.MUHAMMED,** **SRI.M.SAJJAD.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.20461/2008 J** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF RANK LIST PUBLISHED BY THE P.S.C. FOR THE POST OF HIGHER SECONDARY SCHOOL TEACHER (ARABIC)(JUNIOR).** - **P2: COPY OF INTERIM ORDER DTD. 14/02/2008 PASSED BY THE HON'BLE COURT IN WP(C) NO.5362/08.** - **P3: COPY OF LETTER DTD. 24/04/2008 ISSUED BY THE UNIVERSITY OF CALICUT TO THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION.** - **P4: COPY OF ORDER DTD. 3/05/2008 OF THE UNIVERSITY OF CALICUT DECLARING M.A.POST AFZAL-UL-ULAMA AS EQUIVALENT TO M.A.DEGREE IN ARABIC.** - **P5: COPY OF JUDGMENT DTD. 13/06/2008 IN WPC.NO.5362/2008.** - **P6: COPY OF ADDENDUM NOTIFICATION DTD. 28/05/2008 ISSUED BY THE PUBLIC SERVICE COMMISSION.** - **P7: COPY OF APPOINTMENT CHART PUBLISHED IN THE OFFICIAL WEBSITE DTD. 22/05/08.** - **P8: COPY OF REPRESENTATION DTD. 26/06/2008 SUBMITTED BY THE 1ST PETITIONER TO THE PUBLIC SERVICE COMMISSION.** - **P9: COPY OF P.S.C.'S CALL LETTER DTD. 5/11/07 ASKING THE 1ST PETITIONER TO APPEAR FOR THE INTERVIEW ON 16/11/07 FOR THE POST OF H.S.S.T.(ARABIC)(JUNIOR).** - **P10: COPY OF EQUIVALENCY CERTIFICATE ISSUED BY THE UNIVERSITY OF CALICUT TO SHRI. NAJEEB DECLARING M.A. POST AFZAL-UL-ULAMA AS EQUIVALENT TO M.A. DEGREE IN ARABIC.** - **P11: COPY OF THE UNIVERSITY OF CALICUT LETTER NO.GA1/B2/6873/05(ii) DTD. 20/11/2007.** ## **RESPONDENT'S EXHIBITS:** **R7(A): COPY OF THE ADVICE OF THE 4TH RESPONDENT DTD. 21/04/2008.** **R7(B): COPY OF THE ...DO... 5TH RESPONDENT DTD. 21/04/2008.** **R7(C): COPY OF THE ..DO.....6TH RESPONDENT DTD. 21/04/2008.** **R7(D): COPY OF THE ...DO....7TH RESPONDENT DTD. 21/04/2008.** **R7(E): COPY OF THE ORDER NO.AA/23440/INFO/2008 OF THE STATE PUBLIC INFORMATION OFFICER DTD. 29/04/2008.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 20461 of 2008-J** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 27th day of July, 2011.** ## **JUDGMENT** In this writ petition, the petitioners who were included in the ranked list for appointment by the Public Service Commission, as Higher Secondary School Teacher (Arabic) (Junior), have sought for a direction to respondents 1 and 2 to withdraw the advices issued to respondents 4 to 7. During the pendency of the writ petition, respondents 4 to 7 were appointed and subsequently the petitioners have also been appointed. What survives now is the claim for seniority of the petitioners over the said party respondents. 2. The petitioners, at the time of submission of applications for appointment, were having the qualification M.A. Post Afzal-Ulama from Calicut University, B.Ed. and SET. They were included in the short list published by the Public Service Commission and were invited for interview. It appears that the Calicut University communicated a letter to the third respondent on 20.11.2007 stating that the question of issuing equivalency certificate for M.A. Post Afzal-Ul-Ulama to M.A. Degree in Arabic is under consideration and the matter will be informed to the Public Service wpc 20461/2008 2 Commission. When the final ranked list was published on 16.1.2008, the petitioners' names were not included. Challenging the exclusion of their names, they filed W.P.(C) No5362/2008, wherein this Court passed an interim order as per Ext.P2 to the effect that “any advice issued to will be subject to the result of the writ petition.” 3. Subsequently, the University cleared the matter in favour of the petitioners by Ext.P4 and the Public Service Commission decided to include their names in the rank list which was recorded by this Court in Ext.P5 judgment in W.P.(C) No.5362/2008. Ext.P6 is the copy of the addendum notification wherein the first petitioner is included as rank No.1A, the second petitioner as rank No.9A, the third petitioner as rank NO.19A and the fourth petitioner as rank No.30A. Out of 67 vacancies reported to the Public Service Commission, 32 were treated as No Candidate Available (N.C.A.) vacancies and 35 candidates were advised. Contending that respondents 4 to 7 were advised in the turns available to the petitioners, this writ petition was filed after filing a representation as per Ext.P8. 4. Initially there was an interim order dated 8.7.2008 directing the third respondent not to issue appointment orders to respondents 4 to 7 and finally by order dated 22.9.2008 the said interim order was vacated. The 3 wpc 20461/2008 position has changed further, as the petitioners have also been advised by the Commission as evident from Ext.P12, which is issued to the first petitioner and his appointment order is produced as Ext.P13. It is clear from the affidavit filed in I.A. No.10080/2011 that all the petitioners have been appointed. 5. In the counter affidavit filed by respondents 1 and 2 on 7.7.2011, it is averred that petitioners 1 and 2 were advised on 30.11.2009 and petitioners 3 and 4 were advised on 7.8.2010. 6. Learned counsel for the petitioners then submitted that the petitioners are entitled for seniority over the contesting respondents as they are higher ups in the ranked list. It is therefore submitted that the seniority of the petitioners should be protected and the advice memos issued will have to be revised accordingly. 7. In this context, learned counsel for the petitioners relied upon Rule 15A of the Public Service Commission Rules of Procedure, 1976 which enables the Commission to correct a mistake, and the judgments of this Court in **V.V. Prakasini v K.P.S.C. and others** (1993 (1) KLJ 632), **Sidhik v. State of Kerala** (2010 (1) KLT 113) and **Binu Kumar v. Public Service Commissiion** (2010 (1) KLT 1024). wpc 20461/2008 4 8. Learned Standing Counsel for the Public Service Commission submitted that Rule 15A of the P.S.C. Rules of Procedure and the judgments relied upon by the petitioners will not help to support their contentions since there was no mistake in the advice memos in terms of the ranking in the ranked list and when the vacancies were reported. The petitioners were included in the ranked list only based on the addendum notification and therefore any advice made prior to their inclusion in the rank list, will not be affected. Apart from that, it is pointed out that the re-arranging of the advice memos will result in adverse consequences to so many candidates who are also not parties to the writ petition. The said arguments were supported by learned counsel for respondents 4 to 7 also. It is submitted by the learned counsel that the respective juniors of the petitioners from rank No.2 onwards, are not parties in this writ petition and therefore no relief can be granted now as sought for by the learned counsel for the petitioners. 9. Rule 15A of the Public Service Commission Rules of Procedure confers a power on the Commission to correct any clerical, typographical, arithmetical or other mistake in the ranked lists, advice lists or shortlists, etc. or errors arising therein from any accidental slip or omission at any time either on its own motion or on the application of any of the parties concerned. wpc 20461/2008 5 10. The circumstances considered in **V.V. Prakasini's case** (1993 (1) KLJ 632) are quite different from those arising here. Therein, after the appointment of rank No.1, due to a revision of the rank list, there was a change in the ranking and the advice memo was sought to be cancelled in terms of Rule 3(c) of K.S. & S.S.R. Arguments were raised with regard to the power of the Commission to correct the mistake in the rank list also. While adverting to the said contention, this Court held as follows: “Such a reserve power to correct mistakes committed by itself has to be located in every public authority in the interests of justice and to avoid arbitrariness.” 11. In **Sidhik's case** (2010 (1) KLT 113) also, due to a re-checking of the answer scripts the Commission found that the candidate had answered a question twice and marks were awarded wrongly and the total marks were reduced. It resulted in a change in the ranking. The power was recognised under Rule 15A of the P.S.C. Rules of Procedure. 12. Herein, the situation is quite different. In this writ petition, the petitioners are not challenging the ranked list to which respondents 4 to 7 were included. Learned counsel for the petitioners submitted that it is only due to a mistake committed by the Public Service Commission in not recognising their qualification as equivalent, that they were excluded from the ranked list initially. It is therefore submitted that the petitioners were wpc 20461/2008 6 liable to be included in the original rank list itself at the right point of time when it was published on 16.1.2008, but their names were not included therein. The exclusion of their names from the rank list is therefore arbitrary and illegal. 13. In fact, those aspects are not arising for consideration herein, since in the earlier writ petition (W.P.(C) No.5362/2008) filed by the petitioners, the exclusion of their names was under challenge and this Court finally disposed of the writ petition as evident from Ext.P5 judgment, recording the submission that the Public Service Commission has included the petitioners also in the ranked list by way of addendum notification. No further directions were issued either to revise the advice list which would have been issued by the time and they did not claim any seniority in that manner also. As far as reporting of vacancies is concerned, it is an on going process and the Commission has acted in terms of the vacancies reported, to advise respondents 4 to 7. It cannot be said that the advices made of respondents 4 to 7 in terms of the ranking in the rank list, are by a mistake warranting recalling of the same under Rule 15A of the P.S.C. Rules of Procedure or cancellation of the same by invoking Rule 3(c) of KS & SSR. 14. The addendum notification was issued by the Commission, since the University issued a revised proceedings recognising their qualification. wpc 20461/2008 7 Therefore, it was not of any fault of the Commission that the petitioners were not included for the first time in the rank list published on 16.1.2008. Evidently, it was because of the communication issued to the Commission by the Calicut University that they were excluded initially. 15. Therefore, either in the publication of the ranked list or in issuing advice memos, it cannot be said that the Commission has committed any mistakes. The petitioners could secure their place by way of addendum notification and in the subsequent vacancies reported, they have been advised also. 16. No other provisions have been brought to my notice which confers a right on the petitioners to claim seniority in the manner in which the advices had to be issued in a situation like this. Evidently, the claim raised in the writ petition was that in the reported vacancies, at the time of filing of the writ petition, the turns of the petitioners have arisen. The interim order was vacated and respondents 4 to 7 have also been appointed in terms of the advice memos issued. 17. As rightly pointed out by the learned counsel for the respondents, a re-revision of the advice list, as sought for by the petitioners, will affect so many candidates who have been appointed earlier than the petitioners and none of them are parties to this writ petition also. wpc 20461/2008 8 For all these reasons, I do not find any reason to grant the reliefs as now sought for by the petitioners. Therefore, the writ petition is dismissed. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**